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Why did noted chocolatier's trademark application fail?

If you are an occasional fast-food junkie with a sudden yen for, say, a Big Mac while behind the wheel, you likely have one eye on the road and the other scanning exit signs and highway off ramps for a McDonald's franchise.

How do you most quickly spot your target? Unquestionably, it's got to be that large yellow "M" -- the so-called golden arch -- that so readily denotes the restaurant chain, right? It provides for an instant association with the company, a kind of subconscious short cut and guide map to the place you want to be to get that burger in hand.

That is, that symbol is highly distinctive, with distinctiveness being a threshold prerequisite of proof for any trademark applicant. There must be something about a mark -- whether it is a symbol, a catchy saying, a certain shape or other identification -- that instantly sets it off in the public's mind with a certain company, product or service.

One might reasonably regard such a mark as being a compelling source of authenticity for a certain business.

Think Nike, think swoosh. Think of Apple for a moment and probably be surprised if you don't immediately conjure up its iconic image. Think of Coca-Cola and its flatly singular lettering.

But don't think of the Kit Kat bar, introduced in Britain about 80 years and now widely popular globally, including in the United States, where it is made by the Hershey Company.

It's not distinctive enough to command trademark protection, at least in the view of Britain's highest court, which recently balked at giving Hershey monopoly rights over what it insists is a unique chocolate bar shape that instantly conjures up ideas of Kit Kat for consumers.

No so, said justices.

If you're a Kit Kat bar enthusiastic, the ruling will have no adverse effect on your ability to continue consuming the product, of course. Don't be surprised, though, to crack off a piece of a four-segmented chocolate bar shape in the future to discover that ... it's not a Kit Kat.

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