KitKat gets thumbs down in four-finger trademark row

Nestle has lost the latest stage of a fight to trademark the shape of its four-finger KitKat chocolate bar.

Bosses, who say the KitKat shape is ''iconic'' and deserves protection, had launched an appeal after a High Court judge ruled against them.

Mr Justice Arnold analysed the application after rival Cadbury objected, and ruled against Nestle in January last year following a High Court hearing in London.

Three judges considered the case early this year at a Court of Appeal hearing.

But Sir Geoffrey Vos, Lord Justice Kitchin and Lord Justice Floyd dismissed Nestle's challenge on Wednesday in a 16,000-word written ruling which featured images of a KitKat and a wrapper.

Speaking after the latest hearing in London, Lord Justice Kitchin said the "three-dimensional" KitKat shape was not a "badge or origin".

"We are concerned here with ... the three-dimensional shape of a chocolate product, that has no inherent distinctiveness," he said.

"A shape of this kind is not inherently such that members of the public are likely to take it as a badge of origin in the way they would a newly coined word or a fancy name."

He suggested that the shape may have become "very well known" but added: "That does not necessarily mean that the public have come to perceive the shape as a badge of origin such that they would rely upon it alone to identify the product as coming from a particular source.

"They might simply regard the shape as a characteristic of products of that kind or they might find it brings to mind the product and brand name with which they have become familiar.

"These kinds of recognition and association do not amount to distinctiveness for trademark purposes."

Sir Geoffrey said: "Trademarks are intended to permit consumers to make informed choices between the competing goods of different undertakings in the course of trade.

"The shape of the KitKat bar has not been used to promote or market KitKats in recent times.

"It has nothing, therefore, to do with the informed choices that consumers make between similar products."

Judges heard that Nestle had spent between £3 million and £11 million a year advertising and promoting KitKats from 1996 to 2007.

In 2010 more than £40 million of four-finger KitKats were sold.