Kit Kat Loses UK Trademark Battle for Chocolate Bar Shape
Nestlé tried to trademark the shape of its popular Kit Kat bar overseas, but it just couldn’t get a break. After a UK court recently denied the company’s attempt to trademark the "shape of a four finger chocolate-coated wafer,” the British High Court also similarly refused to allow the trademark last week. In the case, Nestlé cited a survey that stated 90% of the participants recognized the bar as a Kit Kat when they saw it, without any wrapping. The court said that the bar’s shape was recognizable—but only in conjunction with the name that is printed on the bar. This was not enough to render the shape of the bar itself sufficiently distinctive.
“In these circumstances it seems likely that consumers rely only on the word mark Kit Kat and the other word and the pictorial marks used in relation to the goods in order to identify the trade origin of the products,” the court’s opinion stated. “They associate the shape with Kit Kat (and therefore with Nestlé), but no more than that.”
Other foreign chocolate-makers similarly utilize the Kit Kat bar’s familiar shape. For instance, a Norwegian bar named Kvikk Lunsj—meaning “quick lunch”—has been around since 1937. Although a trademark on a three-dimensional object is not commonplace, some attempts have been successful. For instance, Coca-Cola received a USPTO trademark on its bottle’s contours in 1960. Unfortunately for the Kit Kat bar, it has yet to achieve similar international iconic status.
Sources: http://www.bailii.org/ew/cases/EWHC/Ch/2016/50.html http://www.bbc.com/news/magazine-35374128 http://money.cnn.com/2016/01/20/news/kit-kat-trademark-nestle-cadbury/
For more information on this topic, please visit our Trademark Oppositions & Cancellations service page, which is part of our Trademark practice.
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