18 November 2019

International Cases

United Kingdom


Intellectual Property Rights

Nestle’s KitKat trade mark ambitions hit sleeping policeman

A High Court in the United Kingdom declined granting Nestle trademark over the distinctiveness in the shape of its four-fingered chocolate bar, ‘Kit Kat’. The Court found Nestle to not have promoted the chocolate bar’s shape as a major selling point, given that it was wrapped in opaque packaging. It held consumers to relied more on the mark ‘Kit Kat’ and the packaging to identify the product, and merely associated the four-fingered shape with Nestle’s chocolate. A similarly shaped product had been available in other European countries since 1937 and was even sold in the UK.

The battle between Nestle and Cadbury over whether the ‘trade mark’ Kit Kat shape can be registered is a battle long-running. In September, 2015 the European Court of Justice had ruled the design to not be resulting from the nature of the goods or necessary to obtain a technical result. Moreover, Nestle had failed to prove that the shape was distinctive in the mind of consumers, given that the design for which registration was applied for excluded the words ‘Kit Kat’.