Nestlé lose “shape mark" attempt to prevent copycat KitKats

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.

If you feel you have an intellectual property case and need some legal advice then please speak to Shalish Mehta, our civil and commercial litigation solicitor. Please call our intellectual property solicitors on 0161 785 3534 or email sm@wrigleyclaydon.com.

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Shalish Mehta

Shalish is an experienced dispute resolution solicitor who joined the firm in 2002 ago upon qualifying as a solicitor and provides a proactive approach whilst retaining the personal touch to help you achieve the best possible outcome for your case. He acts on behalf of both private individuals and commercial clients. He can assist and advise at any stage of a dispute including mediation through to court action and injunctions. Shalish is a keen sportsman, regularly playing cricket and five-a-side football and also watching live sport. He enjoys city breaks and takes great pleasure in sampling different cuisines from around the world. Shalish is fluent in Gujarati and will happily represent those for whom Guajarati is the first language, in English. He is also happy to offer his services as a translator to our clients as necessary. What clients say about Shalish: “We feel the service was perfect and found our solicitor, Shalish Mehta, very professional and helpful in all aspects”