A bid to trademark the shape of York’s unmistakeable four-finger KitKat chocolate bar has been given the thumbs down.

Nestle bosses insist the KitKat shape is “iconic” and deserves protection, but appeal court judges disagreed.

The company originally took the case to the High Court in January, in the face of opposition from rivals Cadbury.

When that case was thrown out, Nestle appealed.

‘No distinctiveness’

Delivering the Appeal Court verdict today (Wednesday), Sir Geoffrey Vos, Lord Justice Kitchin and Lord Justice Floyd dismissed the challenge on Wednesday in a 16,000-word written ruling.

Lord Justice Kitchin said the “three-dimensional” KitKat shape “has no inherent distinctiveness”.

“A shape of this kind is not inherently such that members of the public are likely to take it as a badge of origin in the way they would a newly coined word or a fancy name.”

Photograph: Richard McDougall

Sir Geoffrey added:

The shape of the KitKat bar has not been used to promote or market KitKats in recent times.

It has nothing, therefore, to do with the informed choices that consumers make between similar products.

Known around the world

How the bar used to look, from an exhibition at York Castle Museum. Photograph: Richard McDougall

Judges heard that Nestle had spent between £3 million and £11 million a year advertising and promoting KitKats from 1996 to 2007.

In 2010 more than £40 million of four-finger KitKats were sold.

A Nestlé spokesperson said the company was disappointed as the shape was familiar to choccy fans worldwide.

The company said in a statement:

KitKat is much loved around the world and its four-finger shape is well known by consumers.

Nestlé’s four-finger shape has been granted trademark registration in many countries of the world, for instance Germany, France, Australia, South Africa and Canada, further protecting it from imitations.

Brand’s history

The brand has a longer history than the bar itself.

Rowntree’s first registered the names Kit-Cat and KitKat in 1911, but waited until the 1920s before launching a box of chocolates with the name.

Kit Kat was originally the name of a 17th century literary and political club that met in the pie shop of a pastry cook called Christopher Catling. Mr Catling’s names being more easily shortened to Kit and Cat.

Meanwhile what became the KitKat bar began life as Rowntree’s Chocolate Crisp.

Its creation, so the story goes, came after one of the York factory workers put an idea in the company suggestion box at that Rowntree’s ought to be making ‘a chocolate bar that a man could take to work in his pack up’.

Rowntree’s tried to make a chocolate bar that would be more affordable, and they used wafer to fill the product and keep the price below that of a solid chocolate bar.

People loved it, and demand for the new bar quickly began to outstrip supply.

In 1937 the name KitKat began to appear alongside Chocolate Crisp as its nickname. It was also marketed as Kit-Kat during the war when rationing led Rowntree to change the recipe.

But it wasn’t till 1949 that Chocolate Crisp was out and KitKat in.

Through the years, the shape has stayed the same – hence the legal action.

Source: Nestle