- The Washington Times - Wednesday, May 17, 2017

The four-finger shape characteristic of Nestle’s Kit Kat bar is not a trademarkable feature, the Court of Appeal ruled Wednesday, in what the BBC described as “the latest twist in a decade-long UK chocolate wars saga between Nestle and Cadbury.”

At issue is the sale in the U.K. of the Norweigan candy bar Kvikk Lunsj, which also has a four-finger shape, although its packaging is distinctive and not readily confused with that of the Kit Kat bar. 

The court affirmed the evidentiary findings of a lower court, which had rejected Nestle’s claim for trademark protection.

“As the Hearing Officer said here, trade marks are intended to permit consumers to make informed choices between the competing goods of different undertakings in the course of trade,” Lord Justice David Kitchin wrote for the court. “The shape of the KIT KAT bar has not been used to promote or market KIT KATs in recent times. It has nothing, therefore, to do with the informed choices that consumers make between similar products.”

For its part, Nestle suggests the ruling is out of step with legal protections in other country where Kit Kat is sold.

“Nestlé’s four-finger shape has been granted trademark registration in many countries of the world, for instance Germany, France, Australia, South Africa and Canada, further protecting it from imitations,” said a spokesperson in a company statement, reported the BBC. 

Even so, Nestle lost a similar court battle in an E.U. court in 2015. Nestle has yet to decide whether or not it will appeal the Court of Appeal’s decision, the BBC said.

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