No break for KitKat as EU court rules against monopolies of shapes
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Version 0 of 1. Swiss multinational food company Nestlé failed to convince European judges that the shape of its famous four-finger KitKat bar merits a trademark on Wednesday. In order to register the KitKat bar as a trademark, Nestle had to demonstrate that the shape of the KitKat is distinctive enough for consumers to rely on it alone to identify the snack, according to the Europe Court of Justice. Nestlé claimed that 90 per cent of its consumers associate the shape with the chocolate bar. But the EU court said trademark protection can’t be given if a shape ''contains three essential features, one of which results from the nature of the goods themselves and two of which are necessary to obtain a technical result''. Cadbury opposed Nestlé’s attempt to trademark the shape of KitKat’s when it filed the request back in 2010. According to James Sweeting, senior associate in the Media, Brands & Technology team at Lewis Silkin, today’s ruling will make it extremely difficult for companies to obtain monopolies over shapes. ''This test makes it extremely difficult for companies to obtain monopolies over shapes. In order to do so, they would have to promote the product as a shape in its own right, stripping it of all other branding which may also indicate where the product originates.'' The court decision gave both sides an opportunity to claim victory. This technically means that both could now launch four finger chocolate bars without being afraid of getting caught up in court. ''This decision will be seen by some as carte blanche for competitors to release their own four-fingered chocolate bars. While we may see some more of those seeping onto supermarket shelves, competitors will still have to tread carefully so as to avoid any infringement of other IP rights held for the KitKat bar,'' Sweeting said. The Kit Kat is a chocolate-covered wafer biscuit introduced in 1935 with the famous tagline ''Have a break... Have a KitKat''. Nestlé has reportedly sold £40 million worth of KitKats in the UK every year between 2008 and 2010. The case will now return to the UK High Court for a final decision. |