In this case, registration of a trademark in the United Kingdom was denied due to the lack of distinctiveness under Article 3(1)(b) of the trademarks act, 1994.

Tafel applied to register its unique red  mark in the UK for the frying pans and the related goods in class 21. But the mark was rejected on the basis of section 3(1)(b) trade marks Act as it was devoid of the distinctive character and would not have trademark significance attributed to it. 

Even though there were a significant number of people, who identified the “red spot” as TEFAL, the court held that simple exposure and recognition of a sign does not make out the case of acquired distinctiveness. The court also held that the confidence in question is not necessarily independent use of sign but for example a refinery of the ‘red spot’ in some way such as “a pan with a red spot”. 

The court referred to the case of Societe Des Produits Nestle SA vs Cadbury UK ltd,2017 since it introduced the question of reliance as opposed to association. The court was not convinced that the evidence demonstrated that the redspot alone would be seen as an indicator of brand origin as opposed to Tefal. The hearing officers also had great concerns that the applicant’s sign was a heat indicator of brand origin as opposed to TEFAL. 

The hearing officer also had grave concerns that the applicant’s sign was a heat indicator rather than any random red spot.As well as no fewer than the 65 of the 400 surveys the respondents indicated that the sign showed a heat spot. The court held that the mark can not be divorced from its technical functions. The hearing officer was of the opinion that TEFAL’s evidence has been carefully examined and curated to seek his attention away from the mark’s technical functions. 



In 2010, Nestle applied to register the four finger shape of the Kitkat bar as a trademark. But Cadbury raised an objection to the application since it could establish a monopoly on the four fingered chocolate bar. 

Even though Nestle was successful with its application, the court rejected it. 



Nestle’ argued in a survey it had conducted in which it presented the four finger shape, over 90% of the people used the word kitkat in their response. But this contention was rejected by the court.



The court held that the survey failed to fulfil the definition of “trademark” under section 1(1) of the Trademarks Act. The court also raised a serious concern whether the shape could single handedly distinguish the goods as that of Nestle without the use of other visible trademarks such as the kitkat logo. 

The shape was prohibited from registration under the trademarks act under the following reasons. 

Nestle’ acknowledged that kitkat had 3 components,

  • Rectangular slab shape
  • Grooves dividing the fingers 
  • Number of grooves 


As per Section 8 of the Trademarks Act, trademarks cannot consist of: 

  1. The shape that results from the nature of goods.
  2. The shape of the goods necessary to obtain the technical results 



  1. The shape’s features resulted from the nature of the goods (shape of the rectangular wafers).
  2. The grooves existed to create the fingers which enabled the customers to break off easily, which amounted to obtaining a technical result.
  3. The court prevented Nestle from obtaining a monopoly on technical solutions or functional characteristics of goods, thus the court prevented Nestle from obtaining a monopoly on technical solutions or functional characteristics of goods. Thus the shape cannot be registered as trademarks.


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