Would you recognise an unbranded Kit Kat chocolate bar from its shape alone? Although Kit Kat is one of the most famous brands on sale today, the attempt by owners Nestlé to register the 3D shape of the 4-finger version as a trade mark has been thwarted in the High Court. In a decision handed down on 20 January the Court ruled that the shape could not be registered as a trade mark in its own right. The UK Trade Marks Act 1994 does allow shapes to be registered as marks but only if they are sufficiently ‘distinctive’ in that they provide an indication of the trade origin of the goods. This means that the average consumer would have to be able to rely on the shape of the item alone as an indicator that it was a Kit Kat, and so was from Nestlé, without needing to see the word Kit Kat or other logo. Nestlé failed to show this. Its rival in the huge confectionery market, Cadbury, had led objections to the application. If the mark had been granted, it would have given Nestlé a monopoly over the use of this shape for this type of product and that would have stopped competitors selling rival goods in the same shape. In an earlier battle between the two giants, Nestlé successfully stopped Cadbury securing a trade mark for the purple colour of its ‘Dairy Milk’ brand. It may not be over yet, as Nestlé has said it will appeal.