Nestlé had registered the two-finger and four-finger shapes of its Kit Kat bars as trade marks in Singapore some years ago and had sued Petra, that make similarly shaped chocolate wafers for trade mark infringement.

Petra counter-sued to invalidate Nestlé’s registered shapes and in 2014, the High Court dismissed Nestlé’s claim and allowed Petra’s counterclaim.  Nestlé then appealed.

The Court of Appeal recently affirmed an earlier decision by the High Court.  The court ruled that Nestlé’s shapes lacked inherent distinctiveness and had not acquired distinctiveness through use.  Nestlé therefore lost the ability to grant trade mark protection on the shape of their two-finger and four-finger shaped Kit Kat chocolate bars.