Nestlé sold £40m worth of KitKats a year in the UK between 2008 and 2010.

Having had its trademark application for the four-finger shape rejected by the High Court, after rival confectioner Cadbury opposed it, Nestle went to the European Court of Justice (ECJ). It wasn't seeking to trademark the two-finger version, but could the four-fingered type gain this status?

Nestle argued that, over time, its physical form had acquired a distinctive character associated with the company, and should become a trademark. It cited in a survey in which 90% of people shown a picture of the bar, without any names or symbols embossed on it, mentioned KitKat in their comments.

The conclusion of the ECJ , however, was that that the KitKat’s shape was not distinctive enough for consumers to associate it with the chocolate covered wafer.