Choc Wars – KitKat fails to convince court that its product shape is distinctive

News Article

In a decade-long dispute between two global chocolate manufacturers, the London Court of Appeal has ruled that the KitKat bar is not sufficiently distinctive to be awarded a trademark.

The latest legal ruling follows a long running, bitter dispute between Nestle and Cadbury and follows an earlier failed attempt by the maker of the Dairy Milk chocolate bar to trademark the shade of purple it uses on its wrappers, following a complaint from its arch-rival

Now Cadbury has managed to block Nestle’s plans to trademark its KitKat bar’s four-finger shape, which it had attempted to claim was so distinctive that it should be protected under intellectual property law.

Following the Court of Appeal’s refusal to allow the KitKat shape to be trademarked in the UK, Nestle commented:

“Nestle is disappointed by the Court of Appeal judgment and is considering next steps.

“KitKat is much loved around the world and its four-finger shape is well known by consumers.

“Nestle’s four-finger shape has been granted trademark registration in many countries of the world, for instance Germany, France, Australia, South Africa and Canada, further protecting it from imitations.”

However, Cadbury’s owner, Mondelez, commented: “We are pleased with the Court of Appeal’s decision today and welcome their conclusion.

“As we have previously stated, we do not believe the shape of the KitKat bar should be protected as a trademark in the UK.”

Luke Morgan, a Partner and Intellectual Property expert with Palmers, said: “Back in 2015, Nestle failed to convince the European Court of Justice that the KitKat shape should receive intellectual property protection.

“Although shapes for certain distinctive products, for example the iconic Coca Cola bottle, can be trademarked, many companies have struggled to convince the courts that their product shapes should be protected.

“Nestle’s argument seemed to fail because the ECJ pointed out that the company needed to demonstrate that the public relied on the shape alone to identify the chocolate bar. They concluded this was difficult to prove if goods also showed a brand name on the wrapper, such as KitKat.

“The Appeal Court’s decision could pave the way for competitors and supermarket own-brands in the UK to introduce their own versions of four-fingered chocolate wafer bars without fear of trademark infringements.”

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