Having listened to the arguments about Polos, Lord Justice Mummery said in the appeal court: “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.”
The issue on which the distinguished law lord was ruling is obscure but of great significance to manufacturers Nestlé, and, if they could only understand what is going on, possibly to the worldwide community of Polo suckers.
Polos were launched in 1948 and 38m are produced every day, with more than 140 consumed every second, one in five of them spearmint flavoured.
This is a mint deeply embedded in the nation’s psyche.
It takes the weight of two elephants to press a Polo, a mint which also features in a context more sexual than confectionery in Adultery, a poem by Carol Ann Duffy.
But these interesting details did not concern the judge.
It seems Nestlé had wanted to register a trademark showing the familiar shape of the mint but without the word Polo embossed on it and without any specification of size or colour. That would allow the mint to become less specific and more general, a pink, green or lilac lifebuoy-like thing with the famous nothing in the middle capable of becoming a bigger nothing at will, with the full protection of the law.
Nestlé was yesterday appealing against an earlier high court ruling which rejected that application, following the objections of the makers of Mars bars and other sweets.
That earlier decision meant Nestlé would have had to make another trademark application limiting the Polo image it was seeking to protect to the colour white and to the size of the standard Polo mint.
Yesterday Nestlé went before Lord Justice Mummery to appeal against that high court decision. And lost. And prompted from one of the most senior judges in the land a legal decision as crisp as a mint with a hole from a newly-opened pack.