In the course of Nestlé’s battle for a trademark for the shape of its four-finger KitKat chocolate biscuit, Mr Justice Arnold has asked the Court of Justice of the European Union (CJEU) to clarify when a trademark can be said to have acquired distinctive character and when the shape of a product is capable of registration as a trademark.
The answers to these important questions will have implications for the type of signs that can be registered as trademarks in the future.
In July 2010, Nestlé applied to register a three-dimensional mark for the shape of its four-fingered KitKat chocolate biscuit in relation to goods including chocolate confectionary, chocolate products and chocolate-coated wafer biscuits. Nestlé’s application was initially accepted by the UK Trade Marks registry but was opposed by Cadbury on the basis that the sign lacked any distinctive character and the shape that Nestlé was seeking to register was no more than a shape that resulted from the nature of the goods and/or was necessary to achieve a technical result…
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