Nestlé have recently lost in their attempt to register their four-fingered bar design as a UK trade mark at the UK Intellectual Property Office (IPO). This application, which was opposed by Cadbury, was rejected as the hearing officer at the IPO felt that the four finger shape of a Kit Kat was a result of function, not of design. In essence this means that the number of fingers and groves are used primarily to help people determine portion size or to easily eat the bar, rather than to identify it.
This ruling highlights the need to ensure that a trade mark is clearly individual and created through design, not as a result of function.
However a previous action by Nestlé in Europe has created a rather confusing situation for the manufacturers. The Community Trade Mark Office (CTMO) presided that the four-finger shape can be exclusively associated to Nestlé products. This ruling upholds the trade mark in 28 member states. However, when allied with the UK IPO ruling, it means that Nestlé now has a registered trade mark for the shape in the UK through the CTMO, but at the same time does not have a registered trade mark for the shape in the UK according to the IPO. The situation is set to soon be resolved as Nestlé seem poised to appeal the decision and the expected outcome is likely to be that the two rulings will be synchronised eventually by the European Court of Justice.
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