No Break for KitKat

January 25, 2016 Published by

If you were asked to describe a KitKat, most people would think of a chocolate bar with a four-fingered shape and could probably recall the catchy slogan “have a break, have a kitkat”.

The KitKat shape is well recognized, but on Wednesday 20 January 2016 The High Court in London ruled that the shape of the KitKat has not been considered distinctive enough to warrant its own trademark.

Nestle has been attempting to trademark this shape since 2010. In June 2015, the Advocate General (AG) Wathelet of the Court of Justice of the European Union (CJEU) advised that the application was not compliant with EU law. This was not an official ruling but it did pose a threat to the trademark. Then in September 2015 the Court of Justice of the European Union (“CJEU”) handed down its decision which primarily followed the opinions of Wathelet.

Why is Nestle having such difficulty trademarking its shape? Other three dimensional shapes such as the Coca-Cola bottle have been successfully trademarked. There is a fear in the market that companies are moving to monopolise certain shapes.

The decision is clearly good news for Nestles’ nemesis Cadbury and it looks like the confectionary rivals are now 1 for 1. The confectionary companies have been in a trademark battle since Nestle blocked Cadbury from trademarking the shade of purple used in their packaging.

Nestle plans to appeal the decision as they are of the belief that the shape deserves to be protected as it has been used in the UK for more than 80 years and is well recognized by consumers. We’ll keep you posted.

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