19 May 2017

Chocolate Wars Continue

On Wednesday, Nestle again tasted defeat in its battle to trade mark the shape of their KitKat chocolate bar. The ruling is the latest twist in a decade-long UK chocolate wars saga between Nestle and Cadbury.

The Dairy Milk maker failed in its own attempt to trade mark the shade of purple it uses after Nestle complained. But on Wednesday, it was the Cadbury bosses celebrating the latest attempt to foil KitKat's plans after the Court of Appeal rejected the case for registration. 

Nestle claimed that the shape of the bar was so unique it should be protected by law. But yet again judges have thrown out the attempt. Its case was not helped by the existence of a similar Norwegian bar, called Kvikk Lunsj, which means "quick lunch" and has been around since 1937. 

While Nestle's four-finger shape has been granted registered trade mark protection in many countries of the world, for instance Germany, France, Australia, South Africa and Canada, the UK register has so far eluded them. 

KitKats were first snapped up by the public in 1935 by Rowntree, when it was called the Chocolate Crisp. In September 2015, Nestle failed to persuade European judges of its arguments. The European Court of Justice said that the company had to demonstrate the public relied on the shape alone to identify the snack. They concluded this was difficult to prove if goods also showed a brand name, such as KitKat.

The latest ruling could lead to copycat versions of the bars hitting shelves as there would be less risk of litigation, although it is unlikely that Nestle will give up the fight just yet. Nestle has experience of trying to register difficult trade marks. It took more than 40 years for it to register the slogan "Have a Break" as a trade mark, finally succeeding in 2006. 

This case highlights the fact that while shapes can be protected as registered trade marks for certain distinctive products, it can be a long and difficult process. 

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