Nestlé v Cadbury: Kit Kat’s four finger shape fails as a trademark
Société Des Produits NestlévCadbury UK
- Court
- High Court
- Judgment
- 20 January 2016
- Citation
- [2016] EWHC 50 (Ch)
Recognising a shape as "that's the Kit Kat one" isn't the same as relying on the shape alone to identify the maker.
Nestlé tried to register the shape of the four finger Kit Kat bar as a trademark on its own. The High Court sided with Cadbury, ruling that shoppers recognised the shape but didn't rely on it alone to know where the chocolate came from.
What happened
Nestlé applied to register the 3D shape of the four finger Kit Kat bar, without the embossed logo, as a UK trademark. Cadbury opposed the application. The case had already been to the Court of Justice of the European Union (CJEU), which was asked in 2014 to clarify the test for whether a shape has acquired distinctive character through use. The CJEU gave its answer in September 2015. The court then had to apply that answer to the facts already found by the hearing officer who had looked at the evidence on how shoppers actually responded to the shape.
What did the court decide in Société Des Produits Nestlé v Cadbury UK?
The court held that the CJEU's answer meant Nestlé had to show a significant proportion of relevant consumers perceived the goods as coming from a particular business because of the shape itself, not because of any other mark present, such as the Kit Kat word mark or packaging. That is close to, though not quite the same as, a test of actual reliance on the shape. Applying this to the hearing officer's findings, the evidence only showed that people recognised and associated the shape with Kit Kat. It did not show they relied on the shape alone, separate from the word mark, to identify where the bar came from. Nestlé's appeal was dismissed and Cadbury's cross appeal, which concerned cakes and pastries, was allowed.
What we learned from this
- What I'd take from this is that a shape has to do real work on its own before it earns trademark protection. If shoppers only recognise a shape because they already know the word mark or packaging, that's not enough.
- If you want to register a product's shape as a trademark, gather evidence that tests whether people identify your business from the shape alone, with no logo, name or packaging in sight.
- Association with a brand is not the same as reliance on a shape as the badge of origin. Courts will look for the second, not just the first.
- This type of case can run for years and go through a CJEU reference before reaching a final answer, so it's worth weighing the time and cost against the commercial value of the shape right.
Things to be aware of
- This decision turned on evidence about how consumers actually responded to the shape, not on a general rule that product shapes can never be trademarks.
- The case had already travelled through a CJEU reference before this judgment, so the legal test being applied here was fixed by that earlier ruling rather than decided afresh.
- Cadbury's related dispute with Nestlé over the colour purple ran on for years afterwards, showing how long this kind of brand protection fight between two rivals can continue.
The businesses involved
Société Des Produits Nestlé SA
The Nestlé group company that owns and manages the Kit Kat brand and sought to register the shape of the four finger bar as a UK trademark.
- Note
- Registered outside the UK
Cadbury UK Ltd
Registered in England since 1919 and still active, based in Birmingham, making chocolate and sugar confectionery. It holds 958 trademarks on the UK trademark register and opposed Nestlé's shape mark application.
- Companies House
- 00155256 Active
- Incorporated
- May 1919
- Registered office
- Birmingham
- Business activity
- Manufacture of cocoa and chocolate confectionery
- UK trademarks
- 958
What others said about it
- Confectionery News reported Nestlé's plan to appeal, underlining that the shape mark fight was not over after this ruling.Source: Confectionery News, April 2016
- IPKat notes this judgment sat within a much longer rivalry, with Cadbury's purple colour mark reaching the High Court again in 2022.Source: IPKat, July 2022
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This page is for information purposes only and does not constitute trademark advice or guidance. Summary drafted with AI assistance from the published judgment and checked by The Trademark Helpline (how we write these). Judgment: [2016] EWHC 50 (Ch) on Find Case Law, published under the Open Justice Licence. Company details from Companies House; trademark counts from the UK trademark register. Last reviewed 27 October 2026. Report an error.
