No break for KitKat in brand row

Weekend Argus (Saturday Edition) - - NEWS - ZELDA VEN­TER

CHOCO­LATE lovers who want to “have a break” and “have a KitKat” wouldn’t con­fuse their favourite sweet treat, pro­duced by Nestlé, with the al­ter­na­tive Tif­fany Break.

That’s ac­cord­ing to a Pre­to­ria High Court judg­ment, which found the com­pany man­u­fac­tur­ing the Tif­fany Break choco­late was not in­fring­ing on the decades-old KitKat trade­mark be­long­ing to Nestlé.

Nestlé had asked the court to find that United Arab Emi­rates com­pany Iffco, which dis­trib­utes the Tif­fany Break, in­fringed on its trade­mark rights as the four-fin­gered and two-fin­gered wafer choco­lates ap­peared very sim­i­lar.

This, Nestlé said, could con­fuse the con­sumer into be­liev­ing the two prod­ucts were some­how re­lated.

They also ob­jected to the fact that the word “break” ap­peared on the wrap­per, claim­ing con­sumers could as­so­ci­ate it with KitKat.

But Judge An­dre Louw was not per­suaded by the ar­gu­ments and turned down Nestlé’s ap­pli­ca­tion.

KitKat, which has been around for more than 50 years, comes in a pre­dom­i­nately redand- white wrap­per, while Tif­fany Break has a blue wrap­per, bear­ing red-and-white writ­ing. The lat­ter’s four- fin­ger snack weighs 31g, and is about R2 cheaper than the 45g fourfin­gered KitKat.

One of the many ar­gu­ments be­fore the court was that both prod­ucts were sim­i­larly shaped choco­late-coated fin­ger wafers, which, with­out their wrap­pers, ap­peared sim­i­lar.

Nestlé pro­duced ev­i­dence that the ma­jor­ity of con­sumers, when shown a wafer fin­ger and asked what came to mind, said KitKat.

But KitKat main­tained that, es­pe­cially with­out the wrap­pers, the prod­ucts re­sem­bled each other, and so could ei­ther con­fuse the con­sumer, or sug­gest a link be­tween the two choco­lates.

Judge Louw said con­sumers wouldn’t con­fuse the pack­ag­ing, be­cause it was dif­fer­ent. He was also not con­vinced that when the pack­ages were open, con­sumers would con­fuse the Tif­fany Break with a KitKat.

He said there was no doubt that Nestlé’s KitKat wafers were well known. KitKat had been sold in the UK since 1935, and for more than 50 years in South Africa. It was the third­largest choco­late brand in the world.

The Judge also said Nes­tle did not have the ex­clu­sive use of the word “break”, which was an or­di­nary and nondis­tinc­tive word.

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