Nestlé has lost the latest round of its seven year battle with rivals Cadbury to trademark the shape of the KitKat bar in the UK. The Court of Appeal ruled that the four-finger design had “no inherent distinctiveness”.
Nestlé’s appeal followed a High Court ruling in January 2016 that blocked the trademark attempt.
The European Court of Justice had previously found that the four-fingered shape, was not distinctive enough to merit a trademark and that such a designation would not comply with European law.
The ruling clears the way for competitors, including the major supermarkets as well as other confectioners, to produce their own copycat KitKats without fear of legal consequences.
Nestle could potentially try to take the case to the UK Supreme Court.
The case turned on whether the product’s shape was sufficiently distinctive to the brand to prevent any other manufacturer using a similar format. Protected “shape marks” include Toblerone, which successfully trademarked its “zigzag prism” shape.
Intellectual property solicitors
If you have a brand, something you have invented, or an original piece of work that you have written and someone infringes your rights we can help. We can assist you in securing an injunction and/or damages or account of profits and the delivery up and destruction of the offending item. If you have been accused of infringing someone’s intellectual property rights then we can also help by raising various defences and minimising your liability.
