On Wednesday 20 January 2016, the High Court ruled that Nestlé, who were seeking trademark protection of their well-known chocolate bar KitKat, were not able to trademark the shape of the same. The Court held that Nestlé had not promoted the shape of the chocolate bar as a selling point and that the wrapper that covers the chocolate bar did not reveal the design or shape to the consumer.

In September 2015, the European Court of Justice stated that Nestlé would need to show that consumers relied on the shape of the chocolate bar alone in order to identify it as a KitKat following the High Court referring three questions to the European Court of Justice for clarification.

Accordingly, KitKat is yet to join the ranks of confectionery that has an officially protected shape, such as Nestlé’s other chocolate product, Walnut Whip and another well-known product, Toblerone sold by Mondelez International, which purchased Cadbury following a takeover in 2010.

Within his written ruling, the Judge highlighted that consumers purchasing KitKats relied on the wording on the wrapper in order to identify the product and not its shape; the Judge noted that the four finger shape of the chocolate bar was associated with KitKat but no more than that.

As such, Nestlé’s claim of acquired distinctiveness failed, however, Nestlé have highlighted that they will be appealing against the High Court’s ruling.

Nestlé have previous experience of dealing with Cadbury in trademark disputes. It took Nestlé over 40 years to register KitKat’s slogan “Have a Break” finally succeeding in 2006, however this isn’t a one-sided battle and Nestlé have previously blocked Cadbury’s attempts to register the shade of purple used to package their Dairy Milk chocolate bars.

As yet, Nestlé has not been able to trademark the four finger chocolate bar shape and afford itself protection from other competitors using the shape synonymous with the KitKat. Can we expect to see further four finger chocolate bars following the High Court ruling, such as the Kvikk Lunsj sold in Norway and available in the United Kingdom? Only time will tell.

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