KITKAT decision: a bit of a mouthful

21 September 2015

The latest dispute about protecting the shape of a product, involving Nestlé’s attempt to register the appearance of its KITKAT bar as a trade mark, has been assessed by the EU’s Court of Justice (16th September 2015).

The Court has analysed the legal issues in detail, providing guidance for interpreting those parts of the trade mark law which concern when the shape of a product can act as a trade mark, and in particular what are the restrictions on protecting a shape as a trade mark when the shape results from the nature of the goods themselves or is necessary to obtain a technical result (e.g. the groves which make it easy to break the bar into equal portions).

What commentators and brand owners with iconically shaped products will be looking out for now is how the court in the UK applies this guidance. 

Is this a trade mark?  



Ultimately it is for the UK court to decide.

Jane More O'Ferrall

Jane More O'Ferrall

Partner, Trade Mark Attorney

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