Nestlé Need To Have A Break Following KitKat Trade Mark Failure

In the continuing battle between Nestlé and Cadbury, the UK Court of Appeal has refused to register the shape of Nestlé's four fingered chocolate bar.

Nestlé has used this shape since 1935.  However, in use the chocolate bar is embossed with the words KIT KAT, which was missing from the application which was for the shape alone. The UK Trade Mark Registry initially accepted the application but it was opposed by Cadbury in part of a long running battle between Cadbury and Nestlé, which included Nestlé's opposition to Cadbury's attempt to trade mark the shade of purple found on its Dairy Milk bars. Cadbury opposed this application on the grounds that the mark was devoid of inherent distinctive character and that it had not acquired such a character following the use which had been made of it. Nestlé appealed the decision at the High Court and subsequently to the Court of Appeal.

The Court agreed with Cadbury that the shape was not distinctive enough for consumers to identify all such bars as KitKats. Nestlé has failed to persuade the High Court and subsequently the Court of Appeal of its argument that it had acquired distinctive character in the shape. Nestlé has also failed to register the mark as an EU Trade Mark Registration and the European Court of Justice said that the company had to demonstrate the public relied on the shape alone to identify the snack, which they failed to do. Nestlé has been successful in registering the shape as a trade mark in other countries such as Germany, France, Australia, South Africa and Canada.

Nestlé's argument was not helped by the existence of other companies using this or a similar shape for their confectionery. In particular there is a Norwegian company who produce a similar shaped chocolate bar named "Kvikk Lunsj", meaning 'quick lunch'. This bar has been around since 1937 and its existence was fatal to the argument that the shape of the Nestlé bar was unique.

A spokesperson for Nestlé said "Nestlé is disappointed by the Court of Appeal judgment and is considering next steps." It remains to be seen whether Nestlé seek to continue this argument but one thing that is for sure is that this will not be the last episode in the decade long legal battle between Nestlé and Cadbury over intellectual property protection.