The shape of a ‘kat’

kitkatCadbury and Nestlé are at it again. This time over the shape of Nestlé’s Kit Kat chocolate bar.

Earlier the companies fought over Cadbury’s claim to trademark the colour purple. Now Cadbury it sticking back with a vengeance by opposing Nestlé’s similar attempt to protect the shape of the Kit Kat bar.

The dispute started after the 3D trademark registration for the shape the Kit Kat was accepted by the UK trademark registry. The UK Intellectual Property Office considered the mark to be distinctive.

This high profile case has now been referred the EU Court of Justice, asking exactly how much recognition a shape mark must have in order to be registered as a trademark.

Shapes can be marks (think e.g. Toblerone®), but it has proven difficult to register a shape, unless you can show that it has acquired distinctiveness. Or in other words, that consumers recognize the shape as indicating that a trademark owner is the trade source of the goods.

For Nestlé this is an important case. But for all other IP bystanders, it is very interesting to know what the legal threshold for shape marks really is.

To be continued…

Erwin Hauër

“Hope is not a strategy.”

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