Nestle foiled in KitKat trademark court challenge

Nestle (Swiss: NESN.VX - news) has lost its appeal to try to register the shape of the four-finger KitKat chocolate bar as a trademark.

The Swiss confectionery giant had mounted a legal challenge after a High Court judge ruled against it last year.

Nestle claimed the KitKat shape was "iconic" and deserved protection.

But Mr Justice Arnold ruled that it had not "acquired a distinctive character" enough to satisfy requirements for a trademark.

Nestle challenged the ruling at the Court of Appeal but its case has now been dismissed in a 124-page ruling by three senior judges.

The company said it was disappointed and "considering next steps".

"This judgment does not mean that our four-finger shape is now free for use in the UK or elsewhere," Nestle said.

"Kit Kat is much loved around the world and its four-finger shape is well known by consumers."

It said it had already been granted trademark protection in other countries including Germany, France, Australia, South Africa and Canada "further protecting it from imitations"

Nestle has been embroiled in a long-running battle over the issue, after its initial application to register the trademark in 2010 was opposed by rival chocolate maker Cadbury.

Cadbury owner Mondelez welcomed the latest ruling.

A spokesman said: "We do not believe the shape of the Kit Kat bar should be protected as a trademark in the UK."

Tania Clark, partner and trade mark attorney at intellectual property firm Withers & Rogers said: "The Court of Appeal's decision means rival manufacturers could start making and selling products that look similar, with a lesser risk of litigation.

"Despite today's ruling, this may not be the end of the case.

"Nestle feels strongly about the matter and, depending on whether there are sufficient legal grounds, they could apply for leave to file an appeal to the Supreme Court."