No break from the UK IPO for Kit Kat

By Rachel Hearson

The UK Intellectual Property Office has refused to register four-fingered Kit Kat chocolate bars as a three-dimensional mark.

Société des Produits Nestlé SA applied to register as a trademark its four-fingered Kit Kat bar for chocolate and other goods. The application was opposed by Cadbury UK Ltd under various grounds of opposition found in section 3 of the Trade Marks Act 1994 (the Act).

Section 3 of the Act sets out the ‘absolute grounds’ upon which the UK Intellectual Property Office will refuse a trademark application. In this case, the principal grounds for opposition were sections 3(2)(b) and 3(1)(b) of the Act. Section 3(2)(b) states that a trademark shall not be registrable if the mark consists exclusively of ‘the shape of the goods which is necessary to obtain a technical result’, whereas section 3(1)(b) prevents the registration of trademarks that are devoid of distinctive character…

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