Nestle bid for four-finger KitKat trademark gets thumbs down

Nestle has failed to register a four-finger Kit Kat as a trademark

But despite Nestle's defeat, the company is weighing its options whether it will try take the case to the United Kingdom supreme court.

Nestle challenged the ruling at the Court of Appeal but its case has now been dismissed in a 124-page ruling by three senior judges.

The development is the latest twist in Nestle's long-running legal battle with bitter U.S. rival Mondelez International, maker of Cadbury chocolate.

A four finger KitKat bar is photographed in London Wednesday May 17, 2017.

Nestle appealed and Cadbury objected, arguing that there was likely to have been a number of similarly shaped products produced by others over the years.

A four finger KitKat bar is photographed in London Wednesday May.

Lord Justice Kitchen said, "We are concerned here with... the three-dimensional shape of a chocolate bar, that has no distinctiveness".

"The Court of Appeal has confirmed that the bar is high, something brand owners and their advisers have in reality always known", he said.

The judges also pointed out that the bar's shape had not been the focal point of its marketing for several years, and had nothing "to do with the informed choices that consumers make between similar products". KitKat is much loved around the world and its four finger-shape is well-known by consumers. Acquired distinctiveness carries with it an indication of exclusive trade origin'.

The Court of Appeal said there is insufficient evidence that consumers rely on the shape to identify the milk chocolate-coated wafer bar. But she said the latest court ruling set a high bar for success.

Nestle has failed to trademark its famous four-fingered KitKat bar.

The case has been heard in both English and European courts, with the most recent rulings in favour of Cadbury.

Nestle's biggest rival, Cadbury, said it was "pleased" with the ruling and that it does "not believe the shape of the KitKat bar should be protected as a trademark".

Sally Britton, intellectual property lawyer at law firm Mishcon de Reya, said "non-traditional" trademark registrations - including shapes, sounds, colors and smells - are becoming increasingly popular.

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