The European Court of Justice said that the shape of the KitKat alone was not distinctive enough for consumers to associate it with the snack. Cadbury has persistently fought to prevent Nestle obtaining the trademark and both Nestle and Cadbury said they were "pleased" with today's ruling. Nestle's next challenge will be to try and demostrate that the public identifies the KitKat only by its shape, not the name.
The case will now return to the UK High Court for a final decision.
Commenting on today's judgment, Sally Britton, Intellectual Property lawyer at Mishcon de Reya, said:
"This judgment is something of a mixed result for Nestle – it succeeded on some points, but appears to have lost on one key one. Most notably, the court has stipulated that an applicant for a trade mark protecting the shape of goods - here, the four fingered Kit Kat bar - will have to prove that the public rely on that shape alone to identify its goods with the trade mark owner. If the goods display any other trade marks, such as the brand name Kit Kat, then it will be very difficult for brand owners to show that the public rely on the shape of the goods alone, as opposed to the brand name, to identify them.
"Nestle is likely to continue fighting this point even if, as now appears likely, the English court decides that the Kit Kat shape should not be registered as a trade mark. Nestle has a lot of experience with trying to register difficult marks - it took over 40 years to register the slogan "HAVE A BREAK" as a trade mark – finally succeeding in 2006, having first applied in 1975. And there is no doubt that interest in innovative types of trade marks will continue – they are no longer limited to just words and logos."
