Chocolate Wars: The Kit Kat Awakens-Acquired Distinctiveness not Put to Bed by the Courts

摘要

Having made it to the Court of Justice of the EU on a referral from Mr Justice Arnold, the famous four-fingered chocolate-coated wafer bar, Kit Kat, returned to Mr Justice Arnold in the High Court. The High Court, in applying the (not entirely satisfactory) reasoning of the CJEU, rejected Nestle's application to register the three-dimensional shape of the Kit Kat. This comment looks at the CJEU and High Court decisions and considers their import on the registrability or otherwise of 3D shapes as trade marks.