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Summary: Nestlé has lost at its attempt to trademark its KitKat bar shape.
Nestlé has failed to win their longstanding trademark battle over the four-finger shape of their KitKat bars in Britain, The Associated Press reported. They first attempted to register a trademark in 2010 and were challenged by Cadbury U.K. Ltd.
“KitKat is much loved and the iconic shape of the four-finger bar, which has been used in the UK for more than 80 years, is well known by consumers,” a Nestlé spokesman said in a statement. “We believe the shape deserves to be protected as a trademark in the UK and are disappointed that the court did not agree on this occasion. We are taking the necessary steps to appeal this judgment.”
Others regard the trademark question common sense. “The question is whether a consumer would look at the four-finger chocolate bar and straight away know it was a KitKat, without the logo or wrapper,” trademark attorney Sharon Daboul told The Guardian. “Consumers will tend to be influenced by a brand name and the outer packaging of a product rather than its shape alone, so the threshold for registering shapes as trademarks is high. However, while it is rare to win trademark protection for shapes, it is not impossible — the Toblerone shape and Nestlé’s Walnut Whip are both protected.”
Indeed, Justice Arnold, who ruled on the high court hearing, which began in 2014, said that Nestlé doesn’t promote the chocolate bar based on its shape and sells them in opaque packages hiding its design.
This is not the first time Nestlé and Cadbury have tussled. Nestlé successfully blocked Cadbury’s attempt to trademark a shade of purple used the on packaging of Dairy Milk.
Unless Nestlé is able to convince an appeals court that their bar indeed has “acquired a distinctive character” enough to satisfy trademark policy, the iconic bar will be open for imitation by other candy manufacturers.
Sources: The Associated Press and The Guardian
Photo courtesy of Wikimedia Commons