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 KitKat.

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 KitKat.

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.