Kit Kat Given Two Fingers In Trademark Appeal

Marco Green
May 25, 2017

A United Kingdom appeals court ruled Wednesday that Nestle SA can't claim trademark rights to the shape of its KitKat bar, saying the "four-finger" design of the candy bar is not sufficiently distinctive to consumers.

And today the Court of Appeal agreed with earlier ruling, leaving Nestle with one final chance to have the decision overturned.

Court of Appeal judges in the United Kingdom rejected the application by the confectionery giant, saying its four-fingered bar was not "distinctive" enough to warrant trademark protection.

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"This judgment does not mean that our four finger-shape is now free for use in the United Kingdom or elsewhere", the company said in an emailed statement.

The trademark was registered in many other countries including Australia, Canada, France, Germany and South Africa, according to Nestle.

While the word "KitKat", its red packaging and the slogan "Have a Break" had already been trademarked, the shape of the bar itself lacked the protection.

The appeal judges determined that while the four-finger shape might be "very well known" with KitKat, "that does not necessarily mean that the public have come to perceive the shape as a badge of origin such that they would rely upon it alone to identify the product as coming from a particular source".

Now Nestle could take the Kit-Kat battle to the Supreme Court. In 2013, Nestle won a battle over Cadbury's attempt to register the purple shade of Dairy Milk chocolate wrappers as a trademark.

The ruling is the latest in a series of long running skirmishes between two of the world's largest chocolate manufacturers.

The company feels its KitKat shape is so unique that it claims to have an exclusive right to manufacture and sell it.

The ownership of the brand passed on to Nestle after it acquired Rowntree's in 1988.

"We are concerned here with ... the three-dimensional shape of a chocolate product, that has no inherent distinctiveness", Lord Justice Kitchin said.

Other reports by Click Lancashire

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