No break for KitKat in brand row

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.