Nestlé has been allowed to stop rivals producing products in the shape of its famous four-finger KitKat after a European-wide ruling from the board of appeal at the Community Trade Mark Office (CTMO).

"Having lost out to Cadbury before Christmas over the right to use the colour purple on its packaging, Nestlé will be delighted with this ruling," says Ed Meikle, intellectual property partner in law firm DWFs food sector group. "Design rights have a relatively short lifespan and Nestles, which relate to its four-finger chocolate biscuit, expired long ago. However, with the recognition that shapes can fulfil the function of a trademark, canny businesses have been quick to re-protect their intellectual property rights.

"Nestles three-dimensional trademark registration for KitKat now sits alongside other well-known shapes such as Krafts Toblerone, which is registered for its unique triangular shape. Similarly, Coca-Colas distinctive curved bottle, although no longer protected by design law, now enjoys indefinite trademark protection so long as it remains in use.

"Although obtaining trademark registration can be difficult, it is worth food manufacturers actively considering this sort of protection for products with distinguishing appearances. Not only will they be able to stop their competitors from copying a design more easily, but such registered IP assets will add significant value to their businesses."