The Japan Patent Office (JPO) Appeal Board upheld the examiner’s decision to reject TM App no. 2020-121513 for the 3D shape of Nestle’s KitKat 2 Finger Mini Chocolate Wafers, due to a lack of inherent and acquired distinctiveness.
[Appeal case no. 2024-75, decided on September 29, 2025]
KitKat 2 Finger Mini Chocolate Wafers
Société des Produits Nestlé S.A. filed a trademark application for the 3D shape of KitKat 2 Finger Mini Chocolate Wafers (see below) in connection with chocolate confections (Cl. 30) with the JPO on October 1, 2020. [TM App no. 2020-121513]
The JPO examiner gave Nestle a notice of grounds for refusal on August 30, 2021, based on Article 3(1)(iii) of the Japan Trademark Law due to a lack of inherent distinctiveness.
As a response, Nestle argued not only the inherent distinctiveness of the 3D shape, but also acquired distinctiveness since the shape has been used since 2011 on their world-famous chocolate wafers “KitKat 2 Finger Mini”. To demonstrate the acquired distinctiveness, Nestle conducted market research targeting 1,001 men and women aged 15 to 64 residing in Tokyo or Osaka, or these neighboring areas, and who have purchased and eaten chocolate confections more than once a month. 85% of respondents, when shown the 3D shape of the KitKat 2 Finger Mini chocolate wafers without any accompanying text, identified it as “KitKat” in response to an open-ended question.
However, the examiner considered the market research biased by excluding children aged under 15 and over 65, who are unquestionably relevant consumers, and limiting respondents who reside in the Tokyo or Osaka areas and have purchased and eaten chocolate confections more than once a month.
On October 2, 2023, the examiner decided to reject the mark based on Article 3(1)(iii), and noted that the evidence is insufficient to find 3D shape perse has already played a role in identifying the source of the KitKat 2 Finger Chocolate Wafers.
To contest, Nestle filed an appeal with the JPO on January 4, 2024.
Subsequently, Nestle conducted 2nd market research targeting 1,080 men and women aged 15 to 99 without restricting their residence and preference to chocolate confections. The result shows that 72.9% of respondents, when shown the 3D shape of the KitKat 2 Finger Mini chocolate wafers without any accompanying text, identified it as “KitKat” in response to an open-ended question.
JPO Appeal Board decision
The JPO Appeal Board recognized the high popularity and recognition of KitKats sold in Japan since 1973, which holds a 17% market share — the top ranking in Japan. Annual sales exceeded 27 billion JPY in 2019.
In the meantime, the Board questioned whether the applied 3D shape perse has acquired distinctiveness in connection with the KitKat 2 Finger Mini chocolate wafers by stating that:
- KitKats come in various shapes, such as spherical or stick-shaped, as well as the ‘2 Finger Mini’. Therefore, the applied 3D shape would not be identical to all KitKat chocolates.
- KitKats are sold in individually wrapped pieces that are then packed in boxes or bags for display and sale. This suggests that the 3D shape would not be distinctive enough to catch consumers’ attention at the time of purchase.
- Of the sixty KitKats, only two represent an image of the 3D mark on their packaging.
- There is insufficient evidence to conclude that relevant consumers can securely identify the source of KitKats by relying solely on the 3D mark in question.
- Advertising for KitKats has not prominently featured the 3D shape to the extent that it could be perceived as a source indicator by consumers. Even if market research shows that many consumers associate the 3D shape with KitKats, it cannot be concluded that consumers distinguish KitKats based solely on the shape of the goods.
Based on the above findings, the JPO upheld the examiner’s decision, and declared rejection of the 3D shape due to a lack of inherent and acquired distinctiveness.
The JPO’s decision is appealable until February 11, 2026.
