Logos and No-gos: No break for Kit Kat

AG Wathelet opined that the Mark could not be registered if one or more of its essential features was necessary to obtain a technical result.  If the CJEU follows this opinion (which it usually does), this is likely to prevent Nestlé from being able to register the Mark since one of the essential features of the Mark, the grooves in the chocolate, is necessary to obtain the technical result of allowing the fingers of the snack to be separated.  AG Wathelet’s opinion is a good demonstration of the difficulties of registering shapes as trade marks and provides a useful clarification of when a trade mark may have acquired sufficient distinctiveness to be registered.