Monday, 23 October, 2017

UK court rejects Nestle's bid to trademark KitKat shape

Nestle has failed to register a four-finger Kit Kat as a trademark Nestle has failed to register a four-finger Kit Kat as a trademark
Kelvin Reese | 18 May, 2017, 02:08

The European Court of Justice rejected Nestle's argument that the four-fingered bar's shape was distinct to consumers, even without its red-and-white packaging, and thus deserved trademark protection.

At issue is the sale in the United Kingdom of the Norweigan candy bar Kvikk Lunsj, which also has a four-finger shape, although its packaging is distinctive and not readily confused with that of the Kit Kat bar.

"Despite today's ruling, this may not be the end of the case".

A decision handed down by the Court of Appeal today upheld a High Court ruling from January past year.

Sally Britton, intellectual property lawyer at law firm Mishcon de Reya, said "non-traditional" trademark registrations - including shapes, sounds, colors and smells - are becoming increasingly popular.

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Meanwhile, a spokesperson for Mondelez, Cadbury's owner, said: "We are pleased with the Court of Appeal's decision today and welcome their conclusion".

She said the case is interesting as it examines the type of use and consumer recognition required to obtain monopoly protection over a shape mark.

Nestle said it was disappointed with Wednesday's ruling and was "considering next steps", which could include an appeal to the Supreme Court. The General Court upheld the challenge by Cadbury UK.

"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", said a spokesperson in a company statement, reported the BBC.

A spokesperson for Mondelēz worldwide said: 'We are pleased with the Court of Appeal's decision today and welcome their conclusion.

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