The short answer
Nestlé tried to register the shape of the four-finger KitKat bar as a trademark. On 16 September 2015 the EU Court of Justice (C-215/14) answered questions from the English courts on acquired distinctiveness. The UK High Court (20 January 2016) and then the Court of Appeal dismissed Nestlé's appeal, and in December 2016 the EU General Court annulled Nestlé's EU registration.
Case snapshot
| Item | Detail |
|---|---|
| Courts | Court of Justice of the EU; High Court of England and Wales; Court of Appeal; EU General Court |
| Case | Société des Produits Nestlé SA v Cadbury UK Ltd (C-215/14) |
| Key dates | CJEU 16 September 2015; High Court 20 January 2016; EU General Court December 2016 |
| IP area | Three-dimensional shape trademark; acquired distinctiveness |
| Result | No registration of the four-finger shape in the UK; EU registration annulled |
Background and facts
Nestlé applied to register the shape of the four-finger KitKat bar as a UK trademark. Cadbury (Mondelez) opposed. The registry refused the application and the dispute went through the UK courts, which asked the EU Court of Justice for guidance.
The legal question
When a shape has no inherent distinctiveness, how must a trademark applicant prove that the shape has acquired distinctive character through use, and is public recognition of the shape enough?
The court's reasoning
- Advocate General Wathelet found that mere recognition of a shape by the public is insufficient to prove distinctiveness of a trademark.
- Following the Court of Justice, the UK High Court dismissed Nestlé's appeal against the registrar's refusal ([2016] EWHC 50 (Ch), 20 January 2016).
- The Court of Appeal held that the four-finger design had no inherent distinctiveness and dismissed Nestlé's appeal. Our sources differ on the exact date of that ruling.
- In December 2016 the EU General Court annulled Nestlé's EU trademark for the shape, finding that not all countries within the EU would necessarily associate the shape of the bar with KitKat.
We did not find the exact date or neutral citation of the Court of Appeal decision, nor a detailed account of the Court of Justice reasoning. Check the judgments before relying on details.
Result and outcome
Nestlé failed to obtain trademark protection for the four-finger shape in the UK and lost its EU registration. Nestlé said the outcome did not mean the shape was now free for use by others.
Analysis: why this case matters
The case sets a high bar for shape marks. Showing that people recognise a shape is not the same as showing that they see it as a sign of origin, and in the EU the proof must cover the relevant territory.
Companies with iconic product shapes therefore need to keep evidence country by country and use other rights, such as design registrations and copyright, alongside trademarks.
Practical lessons for brand owners and inventors
- Collect survey and sales evidence in each country where you want a shape mark.
- Show that customers use the shape to identify your brand, not only that they recognise it.
- Combine trademark with design, copyright and unfair competition claims.
- Plan for long timelines: this dispute ran for years through several courts.
Sources and further reading
Palmers Law: Nestlé loses appeal on KitKat shape
Mondaq: tough break for Nestlé on Kit Kat shape mark registration
Food Manufacture: Nestlé loses Kit Kat trademark case
This study is built from the sources listed above. Where a point comes from a secondary report rather than the judgment itself, we say so. Check the judgment before relying on any detail.
Questions and answers
What did the EU Court of Justice decide in C-215/14?
It answered questions on how acquired distinctiveness of a shape must be shown; reports say mere recognition of the shape is not enough.
Did Nestlé win in the UK?
No, the High Court and the Court of Appeal dismissed its appeals.
What happened to the EU trademark?
The EU General Court annulled it in December 2016.
Facing a similar dispute?
SUPREMEiP® prepares the evidence and works with local counsel for registration, watch and enforcement.
