KitKat copy cats are OK, says court

CADBURY has killed off an attempt by its rival Nestle to trademark the distinctive shape of the KitKat.

European judges decided the four-finger chocolate bar is not distinctive enough to be claimed by Nestle for its exclusive use.

The decision by the European Court of Justice, which will have to be rubberstamped by Britain’s High Court, could clear the way for Cadbury and others to launch copycat products.

One lookalike called Kvikk Lunsj – Norwegian for ‘quick lunch’ – already exists. The brand was launched in Norway in 1937 and is available in some UK shops.

Nestle had argued that even without its red and white packaging or the word KitKat embossed on the chocolate, the shape of the bar should be regarded as distinct. It said the shape had been roughly the same since Rowntree sold the first KitKat, then called the Chocolate Crisp, in 1935. Its name later changed to KitKat Chocolate Crisp and then to KitKat after the Second World War.

Nestle, which is based in Switzerland and bought Rowntree in 1988, sells about £40million worth of KitKats a year in the UK.

Despite Nestle’s long association with the bar, Cadbury argued it should not be given the right to monopolise the shape.

It is the latest in a series of battles between the two firms. In 2013, after objections from Nestle, Cadbury lost an attempt to gain the exclusive right to use its iconic purple colour on chocolate bars such as Dairy Milk.

Sally Britton, an intellectual property lawyer at Mishcon de Reya, said Nestle was likely to continue arguing its case, ‘even if, as now appears likely, the English court decides that the KitKat shape should not be registered as a trademark’.

James Sweeting, of the law firm Lewis Silkin, said the ruling would make it extremely difficult for companies to obtain monopolies over shapes.