Nestle loses legal battle to trademark shape of KitKat bar

Kitkat Trademark - Nestle - Rothera Sharp Solicitors, Nottingham

With the heat of the General Election and its protracted fall-out, perhaps it’s time to take a break, it’s… time to try and trademark the shape of a KitKat?

News reaching us here at Rothera Sharp is that confectionery giant Nestlé has lost its latest round of a long-running battle with fierce rivals Cadbury to try and trademark the shape of the KitKat bar.

Nestlé’s plans have been stymied after the court of appeal ruled that KitKat’s four-fingered design “had no inherent distinctiveness”.

In a recent, mammoth 16,000-word ruling recently, three appeal judges said that the KitKat shape was “not a badge of origin”.

This battle has been going on for some time, and the latest appeal followed a UK High Court ruling in 2016 that blocked the trademark attempt. The European Court of Justice had previously found that the shape of the KitKat was not distinctive enough to merit a trademark.

While this might not seem important for the regular chocoholic, it does clear the way for competitors to manufacture their own versions of the KitKat without fear that they’ll be dragged through the courts.

Nestlé, of course, won’t give up. For example, the Swiss company could take its case to the UK Supreme Court. A spokesperson for the firm said: “Nestlé is disappointed by the court of appeal judgment and is considering its next steps.

“KitKat is much loved around the world and its four-finger shape is well known by consumers. Nestlé’s four-finger shape has been granted trademark registration in many countries of the world, for instance Germany, France, Australia, South Africa and Canada, further protecting it from imitations.”

The KitKat has been around since 1935, so this one could run and run.

If you need advice on Intellectual Property matters, Rothera Sharp have the team for you. Call our solicitors on 0800 088 6280 or email enquiries@rotherasharp.co.uk

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