Brands Update: KitKat — Mr Justice Arnold has a break

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Mr Justice Arnold is referring three questions to the Court of Justice of the European Union (CJEU) in a dispute between Nestlé and Cadbury over the registrability of Nestlé’s KitKat shape.

The judge’s referral is in the context of an appeal and cross appeal from a Hearing Officer’s conclusions: the mark was devoid of inherent distinctive character and had not acquired distinctive character, in relation to all goods covered by the application except ‘cakes’ and ‘pastries’; the registration was precluded on the ground that the mark consisted exclusively of a shape that was necessary to obtain a technical result; the mark was inherently distinctive in relation to cakes and pastries and registration was not precluded.

Arnold J overturned the Hearing Officer in relation to ‘cakes’ and ‘pastries’. He found that the mark was devoid of inherent distinctive character in relation to these goods. On the remaining points, Arnold J will have to wait for the CJEU to answer the questions he is referring…

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