Transnational food and drink company Nestlé that owns and manufactures the popular confectionary brand KitKat has been trying to trademark the four fingered 3D KitKat shape in the UK for many years.  The KitKat shape has already received trade mark registration in Germany, France, Australia, South Africa and Canada.

The European Court of Justice previously ruled the four-fingered shape, breaking apart with a snap, was not distinctive enough to merit a trade mark and that such a designation would not comply with European law.  A 2016 UK High Court ruling also denied the trade mark attempt.

The issue at the heart of this case was whether or not the product’s shape was sufficiently distinctive to the brand that it would warrant any other manufacturers from using a similar format.

After months of consideration the UK Court of Appeal judges found the KitKat shape was not a “badge of origin” meaning that customers would not rely on the shape alone to identify the confectionary item, even though market research showed it to be very well known.  They also ruled that the four-finger design had “no inherent distinctiveness”.

This latest UK judgement means that competitors will now be able to produce similar shaped products without the risk of future legal challenges.

Although Nestlé has been unsuccessful at both the UK High Court and Court of Appeal Nestlé could still try to take the case to the UK Supreme Court.