EU Court Lawyer Advises Against Granting Trademark For Kit Kat Shape

from the trademark-barred dept

There's apparently something of a chocolate war going on in Europe, where rival confectioneries all go around trying to trademark silly aspects of their products while everyone else blocks them. Cadbury reportedly kicked all this off some years back, attempting to trademark the color purple (seriously), before Nestle came in and objected, getting the trademark overturned. The most recent edition of this sweet-war is Nestle's consternation over not being able to trademark the Kit Kat bar's four-bar shape.

This probably requires some brief background. See, the UK is the birth-place of the Kit Kat bar. Back in 2013, Nestle decided that the candy had developed a distinction through its shape such that the four-bar shape deserved its own trademark (there was no attempt made on the two-bar fun-sized version). Nestle initially went to the Office of Harmonization of the Internal Market (OHIM), which essentially assigns trademarks for the EU, in 2012. But in 2013, the UK declined to confer a trademark on the Kit Kat shape. The reason for declining was that four bars of chocolate weren't a distinct enough thing to warrant its own mark.

Cadbury is the one objecting to the Kit Kat shape trademark and they've kept up the pressure, despite Nestle's appeals. The latest development is likely the penultimate nail in this issue's coffin, however.

Confectionery giant Nestle's attempt to trademark the shape of its four-finger KitKat bar in the UK does not comply with European law, a senior European Court lawyer has said. The opinion of the advocate-general effectively ends Nestle's attempts to trademark the snack.
That's because the courts generally listen to the advocate-general on these matters, not to mention that the UK has already been predisposed to denying the trademark and the fact that every next EU entity that gets involved seems to have a different opinion likely means the UK courts will simply affirm the denial of the trademark.

Now, it's perhaps worth noting that we, the Techdirt staff, have had some discussions about this case previously and there's been some disagreement about it. Some of us think that the Kit Kat shape is indeed distinct enough to warrant a mark. Others, including myself, do not. My reason is pretty simple: I tend to see trademark as chiefly a way to keep consumers from buying one product when they had intended to buy another. With that in mind, I've never heard of anyone buying a Kit Kat bar outside of the wrapper that covers up the shape, so I think the idea of getting a trademark on the shape is kind of dumb. That said, I should note the UK court didn't take to that line of thinking, asserting only a lack of distinction in the shape.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: europe, kit kat, shape, trademark
Companies: nestle


Reader Comments

Subscribe: RSS

View by: Thread


  1. identicon
    cpt kangarooski, 25 Jun 2015 @ 9:30pm

    I don't know if it's relevant over there or not, but I would say that it is also functional; the shape allows multiple chocolate coated wafer bars to be physically conjoined for packaging but easily separated by the end user.

    reply to this | link to this | view in thread ]

  2. icon
    Nunc_ (profile), 25 Jun 2015 @ 9:58pm

    I don't think that it should be possible to trademark the shape. For one, there are just a few practical ways to make a chocolate snack, and all varieties have been used up. Besides that, brand recognition is more than just the shape. I could imagine that a red wrapper in combination with the 4 bars could be trademarked, each individual part should not.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 25 Jun 2015 @ 10:51pm

    Re:

    But then we are probably closer to patent than trademark. Function is part of patent law while appearance is copyright and/or trademark territory.

    Trademark has a primary role of protecting consumers against similar looking objects with indeterminate quality.

    KitKat in this case seems to be claiming that the shape of the product should not be allowed to be copied by Shit Chat or Kid Kap since the shape is confusing customers.

    reply to this | link to this | view in thread ]

  4. icon
    PaulT (profile), 25 Jun 2015 @ 11:26pm

    "the four-bar shape deserved its own trademark (there was no attempt made on the two-bar fun-sized version)"

    Kit Kat Chunky is where it's at anyway, unless you're getting the random Japanese flavours.

    reply to this | link to this | view in thread ]

  5. icon
    G Thompson (profile), 26 Jun 2015 @ 12:44am

    Nestle' has been saying for ages with Kit-Kat that all you needed was a break!

    So why they need a trademark is beyond me /s

    reply to this | link to this | view in thread ]

  6. identicon
    CharlieBrown, 26 Jun 2015 @ 1:34am

    The Colour Purple

    The colour purple is a trademark of Cadbury in Australia according to their wrappers here. Also the colour blue is a trademark of ANZ bank as well.

    reply to this | link to this | view in thread ]

  7. icon
    Ninja (profile), 26 Jun 2015 @ 5:02am

    I'd like to bring this slightly off topic to highlight this:

    Now, it's perhaps worth noting that we, the Techdirt staff, have had some discussions about this case previously and there's been some disagreement about it. Some of us think that the Kit Kat shape is indeed distinct enough to warrant a mark

    This is one of the things that make this site great. You see, even the writers themselves may differ in opinions and regardless Tim could publish his line of thinking anyway. Never mind the numerous articles where different points of view are exposed and scrutinized even if the author himself can't decide if he agrees or not. And when things aren't what they seem they will come forth and admit they were wrong (Karl's 'apology' to Wheeler was the most recent epic example).

    When I see things like these I find the occasional trolls to be even more amusing in their antics...

    reply to this | link to this | view in thread ]

  8. identicon
    cpt kangarooski, 26 Jun 2015 @ 5:24am

    Re: Re:

    In the U.S., functional aspects of a product are generally not eligible for trademark protection because trademarks are not supposed to substitute for patents not are they supposed to put competitors at a disadvantage for reasons other than the relative reputation of the branded goods.

    I don't know if the EU has a rule like that, but I was pointing out that if they do, that could be another grounds for rejecting a mark on the shape of the chocolate bar. The time period for a patent on that shape has long since expired, however, which is why I didn't suggest patents as an alternative for the manufacturer.

    reply to this | link to this | view in thread ]

  9. icon
    John Fenderson (profile), 26 Jun 2015 @ 8:11am

    Re: The Colour Purple

    In the US, UPS has a trademark on the color brown.

    reply to this | link to this | view in thread ]

  10. icon
    James Burkhardt (profile), 26 Jun 2015 @ 8:28am

    I would like to point out that Cadbury wanted a trademark on the specific shade of purple it uses in its UK packaging, which Nestle had started using with a new bar with the seeming intent of confusing UK customers. I don't otherwise know why "My Purple Bar" would be considered a good name for a chocolate colored chocolate bar. So while I agree the trademark probably was correctly not granted, to say that it was a ridiculous fight discounts the real questions about nestle's packaging decisions.

    reply to this | link to this | view in thread ]

  11. identicon
    AnonyBabs, 26 Jun 2015 @ 9:47am

    I'm with the court on this one. Frankly, I have little patience for the notion that people are too stupid to figure out if they're buying a Kit Kat or a different four-bar candy, or whether their purple-wrapped bar is from Cadbury or Nestle. Sure, some people are that stupid, but is it such a significant portion of the customer base to justify all this legal wrangling? Makes me that much more determined to limit my chocolate purchases to local, high-quality chocolatiers instead of these giant purveyors of mediocre product.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 26 Jun 2015 @ 12:31pm

    Even if it were otherwise worthy of trademark protection, sectioning candy into four separable pieces is a functional design element and should therefore be ineligible.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous 5-year old, 26 Jun 2015 @ 3:43pm

    I usually know that I'm buying a Kit Kat bar because it says "Kit Kat" on the wrapper.

    reply to this | link to this | view in thread ]

  14. icon
    PaulT (profile), 27 Jun 2015 @ 1:22am

    Re:

    "Sure, some people are that stupid, but is it such a significant portion of the customer base to justify all this legal wrangling?"

    No, but as ever that's not really the point. This is about control. If they monopolise certain features or basic design elements, they can shut down competitors, lock out imports from other markets, etc. Customer confusion is just the excuse they use to claim they're doing it for the public rather than profit.

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat

Warning: include(/home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_promo_discord_chat.inc): failed to open stream: No such file or directory in /home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_module_promo.inc on line 8

Warning: include(): Failed opening '/home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_promo_discord_chat.inc' for inclusion (include_path='.:/usr/share/pear:/home/beta6/deploy/itasca_20201215-3691-c395:/home/beta6/deploy/itasca_20201215-3691-c395/..') in /home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_module_promo.inc on line 8

Warning: include(/home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_promo_jq_chat.inc): failed to open stream: No such file or directory in /home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_module_promo.inc on line 8

Warning: include(): Failed opening '/home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_promo_jq_chat.inc' for inclusion (include_path='.:/usr/share/pear:/home/beta6/deploy/itasca_20201215-3691-c395:/home/beta6/deploy/itasca_20201215-3691-c395/..') in /home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_module_promo.inc on line 8
Recent Stories
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.