Nestle’s KitKat Trade Mark application ready to break

Nestle battle on to try and protect its four-fingered KitKat against rival copycat competitors.

Nestle’s attempt to register its chocolate bar in 2013 was rejected by The UK Intellectual Property Office and has been opposed by Cadbury on the grounds that the mark was devoid of distinctive character.

The Trade Marks Act 1994 explains what is required to be able to obtain trade mark protection and the lack of distinctive character and shape of the four fingered chocolate bar is proving a major problem for Nestle.

Nestle has so far failed in the attempt to convince the European Court of Justice (ECJ) to allow it to trademark the shape of its KitKat in the UK in order to prevent other rival companies imitating their goods.  It argued that even without its packaging or the word KitKat on the chocolate bar, the four-fingered KitKat should be regarded as distinct.  The ECJ however, ruled that the shape of the KitKat was not distinctive enough for consumers to completely associate it with the chocolate covered wafer.

Nestle has previously blocked one of Cadburys attempts to trademark the famous purple shade of one of their wrappers and the two chocolate giants seem to be embroiled in a rival conflict over the distinctiveness of their respective chocolate products.

In June 2015 the Advocate General gave his opinion to the ECJ, in his recommendations he said the company’s attempts to trademark the KitKat shape did not comply with EU Law.  The ECJ are now considering the preliminary ruling on questions referred to it by the English High Court as this matter rolls on.

If you require assistance identifying, protecting or exploiting the intellectual property in your business, contact John Pickervance, a solicitor specialising in commercial law, contracts and intellectual property on 0800 689 0831 or via our Contact Form.

This entry was posted in Corporate & Restructuring and tagged , .

Leave a Reply

Your email address will not be published. Required fields are marked *