There is a bit of sleight of hand going on here.... The trick works like this. The manufacturer sells and advertises his product widely and under a well-known trade mark. After some while the product appearance becomes well-known. He then says the appearance alone will serve as a trade mark, even though he himself never relied on the appearance alone to designate origin and would not dare to do so. He then gets registration of the shape alone. Now he is in a position to stop other parties, using their own word trade marks, from selling the product, even though no-one is deceived or misled.Based on the above, it is clear that trade mark reliance should start at boardroom level or the factory gates. Brand owners would do well to show ‘aspirational reliance’ of their product’s shape during launch, thereby laying the foundations for showing acquired distinctiveness. This is something that is done, by coincidence or design, better in other countries, for example, the commonplace use of ‘look for’ pointers by brands in the U.S. to highlight their USPs. Doing so can only serve to validate the responses of interviewees in showing that they have placed reliance on the mark. There is a final question here: would Nestlé would have been better served by simply accepting the Hearing Officer’s decision, which allowed the mark through on inherent grounds for “cakes and pastries”? Whilst Cadbury would have no doubt have appealed this decision, it is questionable whether that issue considered alone would have been decided differently. A significant advertising and marketing push by Nestlé to take on board the Hearing Officer’s comments (e.g. a Kit Kat sold in vacuum packs to show its shape, product displays emphasising the shape, and campaigns around four fingers) followed by a refiling after a few years of such use may have been a prudent option. Indeed, as noted by the CoA, the appeals in this case have focused more heavily on the issue of perception vs reliance than at the UK IPO level. A refiling would have allowed this issue to be properly explored, rather than the limited argument available on appeal. For now, hindsight is 20-20, and Kit Kats are not four finger trade marks in the UK.