Arnold J rules that shape of KitKat chocolate bar cannot be registered as a trade mark
The shape of discord Can the shape of the KitKat chocolate bar be registered as a trade mark on grounds that it has acquired distinctiveness through use? What is required to prove that a trade mark has acquired distinctiveness through use? As IPKat readers will remember, these were some of the very issues that Arnold J had to address in the context of litigation between Nestlé and Cadbury over the shape of the (in)famous chocolate bar that the former had already attempted in vain to register as a UK trade mark in Class 30. The sign for which registration was sought corresponded to to the shape of Nestlé's four-finger KitKat product except that it lacked the KitKat logo embossed onto each of the fingers of the actual product. Following a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) [ here ] , the case got back to the High Court of England and Wales with the learned judge having to apply a...