The Court of Appeal delivered a not-so-sweet ruling yesterday to Nestle, blocking their attempts to trademark the famous shape of their four-fingered KitKat chocolate bar.
The judges decided that the shape had no “inherent distinctiveness”, and therefore rejected the application – indicating just how difficult it is to copyright shapes.
Nestle’s bitter rivals – Cadbury’s – put up a fight in the London Court, following a lengthy litigation battle between the pair. Nestle had previously managed to block Cadbury’s attempts at trademarking the shade of purple it used in 2004. Cadbury owner – Mondelez – said that
“We are pleased with the Court of Appeal’s decision today and welcome their conclusion.”
“As we have previously stated, we do not believe the shape of the KitKat bar should be protected as a trademark in the UK.”
This also isn’t the first time the KitKat makers have been foiled for trying to trademark their ideas. It took them over 40 years to register their famous KitKat strapline – ‘Take a Break’ – and in 2015, the European Court of Justice also stopped the copyright of the four-fingered chocolate bar.
However, Nestle have successfully trademarked the shape in Germany, France, Australia, South Africa, and Canada, amongst other countries.
Shapes are notoriously difficult to copyright. Whilst some shapes of products have been trademarked before – such as the iconic Coca-Cola bottle – businesses can struggle to convince courts to allow it. Guy Wilmot, who specialises in intellectual property law at firm Russell-Cooke, said that
“The appeal court’s ruling indicates that shape marks are going to be increasingly difficult to obtain,”
“The court were… concerned that if they granted the trademark, Nestle would have a potentially permanent monopoly on the four-finer shape, which they felt would be unfair given that KitKat had never used the shape alone to promote KitKats.”
A spokesperson for Nestle have said that the company is
“Disappointed by the Court of Appeal judgement and is considering next steps.”