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CJEU provides guidance on shape marks in Kit Kat case

James Nurton, Vienna


An applicant for a trade mark based on acquired distinctiveness must prove that that mark alone (as opposed to any other mark present on the product) identifies the origin of the goods or services. So said the Court of Justice of the EU in a dispute between Nestlé and Cadbury over the shape of the Kit Kat bar

In its judgment, published yesterday, the Court answered three questions referred from the England and Wales High Court, which in turn was ruling on an appeal from an opposition filed by Cadbury against Nestlé’s UK trade mark application.

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