In order to obtain clarity, the judge will refer questions on two issues to the Court of Justice of the European Union, prior to deciding the appeal. The exact wording of the questions has yet to be framed but they are, in essence:
Distinctive Character
When does a mark acquire a distinctive character through its use?:
Is it sufficient to prove that a significant proportion of consumers would recognise the mark and associate it with the owner (so a consumer could look at the shape and identify Néstlé as the manufacturer); or alternatively
Must it be proven that consumers rely upon the mark, and not any other marks on the goods, to indicate their origin?
Unusually, the judge gave his opinion on the correct approach, stating that it is the second, higher hurdle which must be overcome.