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How distinctive is a KitKat?

Everyone loves chocolate. Now it looks as though Nestlé may face competition in the chocolate wafer bar stakes as they have lost a bid to trademark their four-fingered KitKat in the UK.

Nestlé’s attempt follows on from Cadbury’s efforts to trademark the colour purple. Needless to say the courts didn’t rule in favour of Cadbury’s application either.

The debate started back in 2010 when the UK Intellectual Property Office (UKIPO) found the KitKat to be ‘devoid of inherent distinctive character’. The chocolate bar has been on Britain’s shelves since 1935 and is a recognised name across the country but let’s be honest, the KitKat isn’t the most exciting of chocolate bars, it does the job.

When it comes to applying for a trademark, the applicant must be able to show their product is unique, a one-off that needs to be protected. Trademarks are there to prevent unfair competition by protecting the words, logos or designs that uniquely identify the goods or services of a company.

The KitKat failed to impress and Nestlé could not demonstrate that the shape of their chocolate bar should be attributed to them alone.

Following an appeal, the matter reached the European Court of Justice who ruled that the shape of the KitKat was not ‘distinct enough to merit a trademark’. Nestlé now intend to submit a further appeal.

This ruling potentially opens up the playing field for other confectioners to create similar products, of the same shape, but with a different name – tasty outcome for consumers but potentially costly for Nestlé!

If you think you have a great logo, name or slogan you believe warrants trademark protection, call Sam Perry on 01926 499889 to discuss the process further.