Here's some hot-off-the-press news from the Chancery Division of the High Court, England and Wales -- it's the keenly-awaited ruling of top intellectual property judge Mr Justice Arnold in Société ses Produits Nestlé SA v Cadbury UK Ltd [2016] EWHC 50 (Ch), the controversial case concerning registrability as a trade mark of the four-finger three-dimensional shape of the Kit Kat chocolate biscuit confection.  

To recap, the UK Trade Mark Registry concluded that the mark was unregistrable, raising issues relating to both the distinctiveness of the shape and to its capacity to be perceived as a trade mark.  On appeal Mr Justice Arnold agreed, but referred a number of questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling. The CJEU's decision, which came in for a degree of criticism both for its lack of clarity and for failing to answer the questions in the form in which they were posed, is summarised here.

Today Mr Justice Arnold both dismissed Nestlé's appeal in relation to non-registration of the mark for various goods in Class 30 and allowed Cadbury's appeal against the registration of the same mark for cakes and pastries.

This case will run and run.  Although the judge admitted that it was tempting to make a further reference to the CJEU, he resisted the temptation on the ground that it was unlikely to yield any further result. The dispute will certainly be heard next by the Court of Appeal and, if the losing party before that court has anything to say about it, it will then be the subject of an application for appeal to the Supreme Court. Each of those courts may opt to make a further reference to the CJEU before a final result is reached.