Nestlé has lost a four-year battle to get the design of its KitKat chocolate bar recognised as a trade mark in the UK.
The Swiss confectionary company was seeking to protect the particular shape of its four-fingered chocolate bar in the UK.
But the Court of Appeal ruled on Wednesday that the design lacked the "distinctive character" to be registered as a trade mark ? meaning Nestlé can't take legal action against companies copying the shape.
Nestlé has been arguing a case against rival Cadbury in the UK courts since 2013.
The three Court of Appeal judges confirmed the findings of lower courts in the case, saying that while KitKat's shape may be recognisable to consumers, that was not enough to make it registrable as a trade mark; it was also necessary to show that consumers needed the shape to identify the product. The court noted that KitKat had not used the unwrapped chocolate bar in its marketing in many years, focusing more on the opaque outer packaging.

Mark Corran from London intellectual property law firm Briffa said that, beyond chocolate, the case demonstrated the difficulties facing any product designer wanting to trade mark a shape.
"For product designers, it highlights the difficulty of being able to argue that the shape of their products have become registrable per se as trade marks," he said. "While it is possible, generally speaking, it remains a high hurdle."
Trade marks safeguard brands from copycats. Unlike design rig...