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
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Susan Keston and Rachel Fetches at HGF explain why the CoA’s decision to grant the UPC’s first permanent injunction demonstrates the court’s readiness to diverge from national court judgments
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