Nestle started to produce Kit Kat chocolate in 1935. In 2010 the company tried to register Kit Kat wafer shape, but their main competitor Cadbury filed an opposition to their application, arguing that the registration should be cancelled on the basis of the absolute grounds for refusal, as the mark lacks a distinctive character. However, Nestle did not loose hope to register their four finger chocolate biscuit shape. Company’s representatives have been trying to argue that users recognise the shape even without its red and white packaging or word Kit Kat embossed on it.
Yet, the CJEU as well as lower British courts have a different opinion. The CJEU refuses to register trademarks if they consist of shapes that naturally result from the goods themselves and which are necessary to obtain a technical function. As for Kit Kat, it belongs to the “chocolate and chocolate confectionary” group of goods, and all products falling into this class (including Kit Kat) are of rectangular shape. Other Kit Kat’s properties (e.g. grooves dividing the chocolate bar into fingers and the number of such grooves) are necessary to obtain the technical result, i.e. to comfortably break the bar into fingers.
Thus, all elements featuring in Kit Kat chocolate shape either fall into the class of similar goods that have similar elements or are necessary to obtain the technical result. That is why the CJEU ruled that this shape cannot be registered as the trademark.
Although the decision that CJEU made was not in favour of Nestle, their thorough explanations could be useful to Nestle in the future if they still strive to register trademarks consisting of shapes.