After the culmination of a long running saga between Nestlé and Cadbury, the Court of Appeal has refused to register the 3D shape of the four-finger KitKat as a trademark, leaving the door open for other confectioners to create a chocolate bar of the same shape.

To register a shape as a trademark the design needs to have ‘distinctive character’. The Court of Appeal held that most consumers would not recognise the four-finger chocolate bar without the KitKat logo or wrapper and that, whilst the shape of the KitKat bar is well known, consumers are more likely to be influenced by the brand name embossed on the chocolate fingers and the outer packaging of KitKat than its shape alone.

This demonstrates the difficulty in proving the distinctiveness of a 3D shape that has been used in conjunction with a logo or brand trademark. It is clear from this case that the court sets the bar high in terms of registering 3D shape marks.

It is critical to show that consumers will recognise the product from the shape alone and will make a connection between the 3D shape and the origin of the goods.