Distinctiveness
Function versus identity
A shape that gives a product its function or value is hard to register, because competitors need to use it too.
The KitKat Spat
A long running dispute over whether the four finger shape of a chocolate bar can be protected as a trade mark.
What the dispute was about
Nestlé sought to register the shape of its four finger KitKat as a trade mark. Mondelez, which owns Cadbury, opposed the application.
How the case unfolded
Application
Shape filed for registration
Nestlé applied to protect the three dimensional shape of the bar, not only its name or logo.
Opposition
Rival brand objects
Mondelez argued that the shape was common in the trade and could not identify a single source.
Litigation
Courts weigh distinctiveness
The courts examined whether consumers saw the shape alone as a sign of trade origin, not simply as a product feature.
Outcome
Registration refused
The shape was not accepted as a registered trade mark in the relevant markets, and the dispute became a reference point for shape marks.
Why shape marks are hard
Retail
Recognition on the shelf
Brand owners argue that long use can make a shape recognisable, but the evidence must show that consumers rely on it to pick the product.
Key points for brand owners
- Shape marks require proof of distinctiveness, often backed by consumer surveys
- A product shape may be protected by design rights for a limited time
- Word and logo marks remain the simplest route to brand protection
- Opposition proceedings can take years, so budget for the full timeline
Read the sources
The full case history and related decisions are summarised on our pages below. Start with the Nestlé v Mondelez analysis, then review our general trade mark guide.
Yes. Similar arguments about shape distinctiveness arise in other European and international registries, so the reasoning is widely cited.
Yes, if the applicant shows that the shape has acquired distinctiveness through use and that consumers identify it with one trader.