Time for a break - catching up with KitKat
The KitKat trade mark (as reported in the CJEU decision - the photocopier has not been kind) By now, the fate of the four fingered KitKat shape mark is old news - Joined Cases C‑84/17 P, C‑85/17 P and C‑95/17 P R umours of the mark’s death have been greatly exaggerated - it is now for the EUIPO to reconsider the evidence in light of the CJEU's ruling and reach a decision as to whether or not the mark is valid. Whilst the press may have put the cart before the horse, the CJEU’s decision does suggest that the mark will not remain registered long term. But this case has stickier and more sickly consequences for EU trade marks than a single chocolate bar. The real question is... What does this mean for acquired distinctiveness in the EU? It is not disputed that the shape mark (see above) is not inherently distinctive. Therefore, in order to avoid the mark being invalidated, Nestle had to show that it had acquired distinctiveness through the use that had been made of it in a suf...