Kitkat gets the finger
e:
Swiss food giant Nestlé has been told that it cannot trademark the shape of its iconic fourfinger Kitkat chocolate bar — it’s just not distinctive enough. The company has long insisted that its wafer chocolate bar deserves protection. In fact, it’s mounted quite a few legal challenges over the years to try to preserve its, um, status. The most protracted is a decade-long battle with bitter rival Cadbury.
Some background is necessary: the companies have been fighting over the right to use the three-dimensional, four-finger shape since Kitkat bars were granted protected status by the EU’S intellectual property office in 2006. After a legal bid by Mondelez, the US owner of Cadbury, the EU’S general court annulled the registration in 2016. This prompted an appeal by Nestlé. Now, the European court of justice has been instructed by advocate-general Melchior Wathelet to dismiss Nestlé’s appeal.
According to Wathelet, Nestlé didn’t produce enough evidence to show that its trademark has a distinctive character in all EU member states. In countries such as Belgium, Ireland, Greece and Portugal people just wouldn’t know better, he says.
As we know, the court often (but not always) follows the advice of the advocate-general, its senior legal adviser, when making its final judgment. What this basically means is that copycat Kitkats could very well Consider this: three-quarters of brands experienced trademark infringement in the past year, according to Compumark, which provides trademark research and protection.
Unsurprisingly, a Compumark study shows that most trademark applications are made across products and services, logo and images, and company names.
Against the backdrop of corporate enmity, I dug up some other intellectual property “beefs” — all but one are chocolate related:
● Cadbury once attempted to trademark the shade of purple it uses for its Dairy Milk bars. I’ll give you a minute. Okay. Cadbury registered Pantone 2685C, but the application was rejected by the UK court of appeal following objections from (you guessed it) Nestlé.
● Cadbury stablemate Toblerone was more successful. Budget retailer Poundland (owned by one Steinhoff) had to redesign its Twin Peaks bar after it was found to be too similar to Swiss-made Toblerone. You might recall that Toblerone caused all sorts of chaos when it increased the gap between its triangles and reduced the weight of its bars in response to rising commodity prices after the pound’s Brexit-induced drop.
● Meanwhile, in 2013, Germany’s federal court of justice rejected a final appeal by Lindt & Sprüngli to protect its gold foil-wrapped Easter bunnies from imitation by a German rival Confiserie Riegelein.
● Finally, the Rubik’s Cube — which was invented by a Hungarian professor in 1974 — in 2010 lost a decadelong battle to secure trademark protection for its distinctive character.
I think it’s far harder for firms to assert their right to a particular shape or colour than trademark a more conventional trademark like a logo.