NestlÃ© Rowntree has lost the latest round in its battle to register the Polo mint’s shape as a three-dimensional trademark, after Masterfoods appealed against the application on the grounds that the “mint with a hole” does not have a distinctive character.
The hearing officer for the case, which was held last week, ruled that for the mark to be registered it would have to include specifications such as colour and size. Masterfoods appealed against the ruling, because it changed the original application, which was filed in 1994. NestlÃ© also appealed against the ruling because it did not believe the amendments were necessary.
NestlÃ© says it is “disappointed” at the ruling and that it is considering its options. It is understood that it filed another application earlier this year, specifying that the mark should be white in colour and the size of the original Polo mint. Trademark solicitor Pen Hosford, a partner at Marks & Clerk, says that Masterfoods has won this appeal on a technicality, and that NestlÃ© would be likely to win its case if it included the amendments.
If NestlÃ© decides to reapply for the trademark, there could be a battle between NestlÃ© and Masterfoods, Kraft Foods and sugar confectionery company Swizzels Matlow. Kraft and Swizzels Matlow both have mint with a hole products.