On 17th May, the Court of Appeal will give its much-anticipated decision on whether the four-finger KitKat shape is capable of being protected as a UK trade mark (Nestlé v Cadbury).
Early last year, a High Court judge decided that it was not capable of trade mark protection, rejecting Nestle's reliance on acquired distinctiveness through use. Nestle has appealed this decision to the Court of Appeal.
In December, the European General Court reached the same conclusion in relation to Nestle's EU Trade Mark. However, the basis for the General Court's decision was different, and there are aspects of its reasoning which are in conflict with the High Court's approach.
The Court of Appeal's decision should settle the question of protection of the Kit Kat shape in the UK, but also more broadly provide guidance on what types of shapes should be protected through trade markregistrations.
Sally Britton, Intellectual Property lawyer at Mishcon de Reya says:
"Non-traditional trade mark registrations covering shapes, sounds, colours and smells are becoming increasingly popular and brands look to experiences to drive brand value. Next week we will hear from the Court of Appeal in relation to one of several disputes between Nestlé and Cadbury relating to Nestlé's attempts to trade mark the shape of its four finger bar. This case is interesting as it examines the type of use and consumer recognition required to obtain monopoly protection over a shape mark. Businesses that have shape marks should be following this decision closely."
Sally will be available to comment on the case to preview the verdict or give her analysis on the implication of the case.