KitKat goes unprotected as European court rejects trademark case
source: http://www.theguardian.com/business/2015/sep/16/kit-kat-unprotected-european-court-rejects-trademark-case I Sean Farrell
Nestlé failed to convince European court of justice that four-fingered version of its chocolate bar should be protected by law
Nestlé argued that even without its red and white packaging
the shape of the four-fingered Kitkat should be regarded as distinct.
Photograph: Roger Tooth for the Guardian
Nestlé has failed in an attempt to convince European judges
to let it trademark the shape of the four-finger version of a KitKat in the UK.
The European court of justice ruled that the KitKat’s shape
was not distinctive enough for consumers to associate it with the chocolate
covered wafer. Nestlé is not seeking to trademark its two-fingered version of
Nestlé had argued that even without its red and white
packaging or the word KitKat embossed on the chocolate, the shape of the bar
should be regarded as distinct.
The dispute between Nestlé and Cadbury, which has fought to
prevent Nestlé securing a trademark, will go back to the UK high court for a
final ruling that will determine whether rivals will be able to launch copycat
KitKats in Britain.
Despite the court’s failure to allow the trademark, Nestlé
said it was pleased with the ruling.
Nestlé suffered a setback in June when the advocate general
of the European court of justice, whose opinions are usually followed by the
court, said the company’s attempts to trademark the KitKat shape did not comply
with EU law.
Nestlé, the world’s biggest food group, and Cadbury, owned
by US group Mondelēz , have been in a tit-for-tat battle over the
distinctiveness of their chocolate products.
Cadbury decided to try and thwart Nestlé’s attempt to
trademark KitKat in 2010 after Nestlé blocked Cadbury’s effort to trademark the
shade of purple used for its chocolate wrappers.
The UK Trade Marks Registry turned down Nestlé’s application
to protect the chocolate bar in the UK in 2013, following Cadbury’s opposition.
Rowntree & Co sold the first KitKat, then called
Chocolate Crisp, in 1935 and the shape remains roughly the same now. Its name
changed to KitKat Chocolate Crisp and then, after the second world war, to
A lookalike called Kvikk Lunsj, translated as “quick lunch”,
launched in Norway in 1937 and is available in some UK shops.
Nestlé, the Swiss company that bought Rowntree in 1988, sold
£40m worth of KitKats a year in the UK between 2008 and 2010. When Nestlé
bought Rowntree, KitKats were covered in foil with a paper outer wrapper, but
now they have a plastic wrapper.