Mishcon de Reya's IP Lawyer comments on KitKat's four-finger trademark verdict
On 17th May, the Court of Appeal handed down 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 appealed this decision to the Court of Appeal.
The Court of Appeal's decision deals with the question of protection of the KitKat shape in the UK, but also more broadly provides guidance on what types of shapes should be protected through trade markregistrations. The decision may be appealed (with permission) to the Supreme Court.
Sally Britton, Intellectual Property lawyer at Mishcon de Reya commented:
"Non-traditional trade mark registrations covering shapes, sounds, colours and smells are becoming increasingly popular as brands look to experiences to drive brand value. The Court of Appeal has today handed down its decision in one of several disputes between Nestlé and Cadbury relating to Nestlé's attempts to trade mark the shape of its four-finger bar. The court's decision sets a high bar for the registration of shape marks. This case is interesting as it examines the type of use and consumer recognition required to obtain monopoly protection over a shape mark. Businesses seeking to protect non-traditional trade marks such as shapes or packaging will need to provide evidence that consumers are relying on that trade mark to identify the origin of the product."