JUDGES in the Court of Appeal have put a stopper on an attempt by Polo’s manufacturers, Nestlé, to register the mint-with-the-hole’s shape as a trademark without needing the word “Polo” on it.

Lord Justice Mummery, delivering judgment, remarked with invective that might have exuded from an acid drop: “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.”

Nestlé’s bitter rivals in confectionery and in hard-fought litigation, Mars, had already successfully objected to the Trade Marks Registry against Nestlé’s attempt to register the unadorned Polo shape, without limitation as to size, colour or use, on the ground that it was “devoid of distinctive character” and in common use.

The registry concluded that Nestlé would have to amend its application to make it less generic by specifiying that the colour must be white and the outline the specific size of the Polo mint.

Both Mars and Nestlé appealed against that proposal, Mars claiming that such amendments would render the original application invalid and Nestlé contending that they were unnecessary.

Mars’s appeal was upheld, the High Court ruling that the registry was wrong to suggest Nestlé’s registration of the ring shape as a trademark might be approved as long as it was was white, the standard size of a Polo mint, and limited to use for “mint-flavoured compressed confectionery”.

Nestlé asked the Master of the Rolls, Lord Justice Mummery and Lord Justice Chadwick to overturn the High Court decision, and reinstate the registry’s decision in Nestlé’s favour, but Lord Justice Mummery said: “We do not agree with the criticisms of the decision under appeal.”

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