KitKat shape trademark: Court of Appeal ruling

Posted on 18 May 2017. Source: Independent

KitKat shape trademark: Court of Appeal ruling

A UK Court of Appeal ruled that the consumer goods giant Nestlé cannot trademark the shape of its popular four-fingered chocolate bar.

The ruling is the latest in a long running legal battle between the Swiss-based company and its rival Cadbury. Nestlé argues that the KitKat’s shape is “iconic” and should be protected by law but Cadbury objects.

A decade-long dispute between Nestlé and Cadbury began when the latter sought to trademark the colour purple for its brand. Nestlé succeeded in overturning that trademark in 2013.

Sally Britton, Intellectual Property lawyer at Mishcon de Reya said the court's decision sets a “high bar” for the registration of shape marks.

This case is interesting as it examines the type of use and consumer recognition required to obtain monopoly protection over a shape mark. Businesses seeking to protect non-traditional trademarks such as shapes or packaging will need to provide evidence that consumers are relying on that trade mark to identify the origin of the product,” she said.

Read the full article in the Independent.

Sally featured on BBC News, BBC World Service and BBC's Today Programme commenting on this issue.

View Mishcon de Reya's Inside IP briefing on this case here.

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