The High Court has now ruled in favour of Cadbury, and agreed that the shape is not distinctive enough to be trade marked.
In a written ruling Mr Justice Arnold noted that the chocolate bar’s shape was not promoted as a selling point and added that the bar had been sold in opaque packaging that did not show the shape.
He wrote: “In these circumstances it seems likely that the consumers rely only on the word mark Kit Kat and the other word and the pictorial makes used in relation to the goods in order to identify the trade origin of the products. They associate the shape with the Kit Kat (and therefore with Nestle), but no more than that. Therefore, if it is necessary to show that consumers have come to rely on the shape mark in order to distinguish the trade source of the goods at issue, the claim of acquired distinctiveness fails.”
The High Court ruling brings to an end a long-running legal between the two companies.
Nestle first attempted to trade mark the shape of the four-fingered chocolate bar in 2010, but its attempts were opposed by rival Cadbury. The two companies have been embroiled in trade mark battles since Nestle thwarted Cadbury’s attempts to trade mark the colour purple used in the packaging of its best-selling Dairy Milk products.
The European court of justice had previously ruled that the shape of the KitKat was not distinctive enough to merit a trade mark and that such a designation would not comply with European law.
Nestle plan to appeal the judgment and following the ruling a spokesman for Nestle commented: “KitKat is much loved and the iconic shape of the four-finger bar, which has been used in the UK for more than 80 years, is well known by consumers, We believe the shape deserves to be protected as a trade mark in the UK and are disappointed that the court did not agree on this occasion. We are taking the necessary steps to appeal this judgment.”
A spokesman for Mondalez- the owner of Cadbury commented: “We are pleased by this ruling by the UK High Court, which is in line with our contention that the shape of the Kit Kat bar is not distinctive enough to be protected as a trade mark.”