“In what circumstances can a trader secure a perpetual monopoly in the shape of a product by registering it as a trade mark?” This was the judge’s opening summary of the issues raised by Néstlé's High Court appeal against a decision to refuse its application to register the four finger shape of its KIT KAT chocolate bar as a three-dimensional trade mark.
The Application
Néstlé applied to register the three-dimensional sign in respect of goods in class 30, including chocolate products, confectionery, pastries, cakes and biscuits. Cadbury opposed the application.
A senior hearing officer of the UK Intellectual Property Office decided that the sign was precluded from registration for the goods applied for (except cakes and pastries) on the grounds that:
It was devoid of any distinctive character and had not acquired such a character, despite the very extensive use made of the shape; and also
The sign consisted exclusively of a shape: