No to the third dimension

Nestlé has failed to register a three-dimensional trade mark in the form of its four-fingered KIT KAT bar for chocolate and other goods. The hearing officer upheld Cadbury’s opposition that the mark was not registrable (except in relation to cakes and pastries) as the shape of the goods was necessary to obtain a technical result. The presence and depth of the grooves was necessary to enable it to break (a technical result) and the other recognisable features of the shape resulted from the very nature of a moulded chocolate bar. None of the essential features of the shape were arbitrary, decorative or imaginative and the mark was devoid of distinctive character as the shape was within the norm or a mere variant of the common shapes for chocolate bars and biscuits. Nestlé’s argument that the mark had acquired distinctiveness also failed. While Nestlé had shown recognition of the mark amongst a significant proportion of the relevant public for chocolate confectionery, it had not shown that they had come to rely on the shape to identify the origin.

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