Thrown out of court: the case with a hole

A judge threw out an attempt by the sweet-maker Nestlé to trademark the shape of Polo mints yesterday, saying the claim had "a hole in the middle".

A judge threw out an attempt by the sweet-maker Nestlé to trademark the shape of Polo mints yesterday, saying the claim had "a hole in the middle".

Lord Justice Mummery's remarks at the Court of Appeal spelled yet another defeat for the multinational's plans, which have been rejected before by the High Court. But Nestlé signalled its determination to press on, saying it was considering taking the "next step" in the battle. That would involve taking the case to the House of Lords and, potentially, to Europe.

Nestlé wants to register a trademark showing the familiar shape of the mint but without the word "Polo" or any specification of size or colour.

Confectioners such as Mars say the attempt breaches the Trade Marks Act 1994 and that the shape of a Polo alone is "devoid of distinctive character".

Lord Justice Mummery said: "This is an appeal concerning Polos, the mint with the hole in the middle. This is an appeal with a hole in the middle. It is dismissed."

A Nestlé spokesperson said yesterday: "We are obviously disappointed and are considering the next steps. I think we have the opportunity to appeal but we will be looking at where we go from here."The legal question is commercially important. Britons eat 100 million Polos each year.

Mars and Nestlé are no strangers to facing each other across a courtroom. In July of last year the Appeal Court referred another trademark wrangle between them to the European courts. That case centred on a bid by Nestlé, which makes KitKat, to register the phrase "Have a Break" as a trademark.

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