Alert: Court of Appeal clarifies scope of shape mark protection (Nestlé v Cadbury)

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IP & IT analysis: The Court of Appeal has dismissed an appeal by Société des Produits Nestlé (Nestlé) against the decision of the High Court in January 2016, upholding a decision of the hearing officer that its UK trade mark application for the shape of the well-known four finger chocolate product sold under the name Kit Kat was invalid on the basis that it lacked acquired distinctive character. This marks the latest step in a long running struggle by Nestlé to try to register the mark without success. The Court of Appeal held that it was clear, based on the case law of the Court of Justice, that, in order to show acquired distinctiveness, the applicant must prove that, as a result of the use that he has made of the mark, a significant proportion of the relevant class of persons perceive the goods designated by that mark, as opposed to any other mark which might also be present,...