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Have A Break, Have A KitKat waiting for clarification from CJEU on three-dimensional mark

KitKat Nestlé applied to register its famous four-fingered Kit Kat bar as a three-dimensional registered trade mark. Cadbury opposed the application. On 20 June 2013, a decision by the UKIPO refused Nestlé’s trade mark application in class 30 for chocolate and various chocolate confectionery products but allowed the application in relation to cakes and pastries. Justice Arnold largely agreed with the hearing officer’s reasoning that the three-dimensional shape should not be registered because it lacked distinctiveness and had not acquired distinctiveness, and that the shape was necessary to achieve a technical result. However, he referred some interesting questions to the CJEU that could result in a significant change in the way in which we approach shape marks.      (more…)

A new ingredient in Chocolate: The Trade Mark

Chocolate CasesIn the post below IPcopy takes a quick look at some recent decisions in the world of chocolate and other types of confectionary on the topic of colour and 3D trade marks. The overview highlights some trends in EU jurisprudence on the distinctiveness requirement for the registrability and enforceability of such marks. Get ready to read about chocolate bunnies, jelly bears and many more.


Cadbury and the Colour Purple

Having been contested in the UK Courts for the last 8 years, the Cadbury decision of 1 October 2012 (Société des Produits Nestlé SA v Cadbury UK Ltd [2012] EWHC 2637 (Ch), 1 October 2012.) adds a little clarity to the murky waters of registrability of colour marks in UK trade mark law.

Guided largely by the Libertel decision in the CJEU (namely, that single colour marks may be registrable per se if described clearly and classified precisely through an internationally-recognised colour code system such as Pantone), Judge Birss QC moved one infant-step further and held that the context of the case must be assessed before any decision can be made on the registrability of a colour mark. Such assessment of the context of a case may include consideration of the limited availability of colours in relation to the goods and/or services in question and public perception of the mark. In Cadbury’s case, after consideration of the context of the case, its shade of purple was held by the High Court to be registrable in connection with milk chocolate products, though not the broader category of chocolate products in general.

Clearly, with around 100 years of evidence of use to support Cadbury’s claim to registration, the effects of this decision must be interpreted with some caution, though the focus on a general assessment of the context of a case is useful for other applicants wishing to register colour marks in the future.

Nick Bowie 17 October 2012