Mishcon de Reya IP Partner Sally Britton featured on BBC Breakfast prior to the CJEU (Court of Justice of the European Union) handing down its decision in Nestle's long running attempt to trademark the four finger shape of the KitKat, challenged by its competitor Cadbury.
Speaking to business presenter Steph McGovern, Sally said:
"For a trademark to be distinctive it has to distinguish your goods and services from those of others. In this case, the chocolate bar actually wasn't found to be distinctive when it was submitted as an application, but what they filed was lots of evidence across the EU – at the time there was 15 member states - to show that it was distinctive enough. The challenge today is, have they shown evidence across enough of the 28 EU states to show acquired distinctiveness. No doubt Cadbury will look at ways of challenging the argument.
"Typically people thought of trademarks being just logos and names, but now trademark law is catching up with the reality. Brands are not just shapes, they are sounds, smells, colours. The advertisement of the KitKat is no doubt an extremely welcome side benefit of this case."
"Whatever happens, we can expect this to go on for some time. If we look at 'Take a Break' – another part of the KitKat brand – it fought 30 years to get that trademark registered."
Sally also featured on BBC World Service and BBC News Channel commenting on this case, and Associate Jonty Warner was featured on BBC Radio Berkshire.