Global Swiss-food manufacturer Nestlé isn’t getting a break from the British legal system. In what was the culmination of a long legal battle, the UK’s High Court ruled last week the food giant cannot trademark in Britain the four-finger shape of its iconic KitKat chocolate bar.
Nestlé first tried to register the trademark in 2010, though it was opposed by rival Cadbury UK Ltd. Other courts, including the Court of Justice of the European Union (CJEU), previously dismissed the case.
The ruling states the shape of the chocolate bar does not have a “distinctive character” that would satisfy trademark requirements. This decision benefits Cadbury and other companies wishing to sell copycat products.
In the written decision, Justice Arnold notes the shape of the product was not used by Nestlé to promote the product. Furthermore, the decision states Nestlé did not demonstrate consumers rely on the four-finger shape, opposed to the logo, to identify the product, a position further supported by the candy being sold in an opaque wrapper.
“In these circumstances it seems likely that consumers rely only on the word mark KitKat…in order to identify the trade origin of the products,” Arnold wrote. “They associate the shape with KitKat (and therefore with Nestlé), but no more than that. Therefore, if it is necessary to show that consumers have come to rely on the shape mark in order to distinguish the trade source of the goods at issue, the claim of acquired distinctiveness fails.”
A Nestlé spokesman told British newspaper the Guardian that, “KitKat is much loved and the iconic shape of the four-finger bar, which has been used in the UK for more than 80 years, is well known by consumers. We believe the shape deserves to be protected as a trademark in the UK and are disappointed that the court did not agree on this occasion.” Nestlé says it will appeal the decision.
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