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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…)
In 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.