UK court rejects Nestle's bid to trademark KitKat shape

A United Kingdom appeals court ruled Wednesday that Nestle SA can't claim trademark rights to the shape of its KitKat bar, saying the "four-finger" design of the candy bar is not sufficiently distinctive to consumers.

Nestle was appealing to be allowed to take out a trademark of the shape, with the court of appeal finally ruling that that's taking ownership of shapes a bit too far.

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Mr Justice Arnold analysed Nestle's application after rival Cadbury objected and considered issues relating to the "distinctive character" of the "three-dimensional shape". 'Non-traditional trade mark registrations covering shapes, sounds, colours and smells are becoming increasingly popular as brands look to experiences to drive brand value'.


"The case highlights the difficulties that often accompany attempts to obtain commercial protection for the shape of a product".

Meanwhile, a spokesperson for Mondelez, Cadbury's owner, said: "We are pleased with the Court of Appeal's decision today and welcome their conclusion".

At issue is the sale in the United Kingdom of the Norweigan candy bar Kvikk Lunsj, which also has a four-finger shape, although its packaging is distinctive and not readily confused with that of the Kit Kat bar.

A Nestlé spokesperson said the company was disappointed by the judgment and is considering next steps. The move was challenged by Cadbury.


Robert Guthrie, a partner at law firm Osborne Clarke said: "It may be that the Court of Appeal was less inclined to follow the approach of the Court of Justice as a result of Brexit and that this is an early indication of the ways in which United Kingdom and European Union trade mark may diverge". KitKat is much loved around the world and its four finger-shape is well-known by consumers, ' they added.

But she said the latest court ruling set a high bar for success.

It said KitKat's shape has been granted trademark protection in countries including Germany, France, Australia, South Africa and Canada.



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