The Court of Appeal has today (here) upheld a High Court decision (here) that the shape of a KitKat is not distinctive enough to warrant trade mark protection in the UK.

We’re currently unwrapping the decision, but the main reason for the finding is that whilst consumers may well associate the shape of a KitKat bar with Nestlé, they don’t rely exclusively upon the shape to determine its trade origin. Put another way, consumers don’t see the shape and think that, as a consequence of its use, the bar is a KitKat, produced by Nestlé and only Nestlé.

Fatal to Nestlé’s case was that the evidence provided to show acquired distinctiveness (i.e. that consumers have been educated to understand that the four-bar shape exclusively indicates Nestlé’s KitKats) fell short of what would be needed. The reasons given included the fact that Nestlé hadn’t focused its advertising on the shape of the KitKat itself, which would have served as a way of educating consumers.

We’ll follow up with a more substantive review of the decision shortly. In the meantime, we imagine that Nestlé may already be planning an appeal to the Supreme Court.