The shape of a KitKat bar is not distinctive enough shape to warrant trademark protection, the U.K. Court of Appeal held on said Wednesday, the latest in a strong of losses for Nestle SA in connection with the chocolate bar. The court’s decision comes after two unfavorable rulings from lower courts in England and losses in the European Union (its General Court held late last year that the candy bar’s shape was not worthy of trademark protection) and Singapore.
The U.K. Court of Appeals’ three-judge panel upheld lower court rulings, which held that the evidence put forth by Nestle failed to “show that the consumer would perceive the [candy] bar as originating from Nestle and not from others. The distinction may be highly technical, but it is important, because of the nature of the trademark, which gives the trader a monopoly for all time.”
The shape of the 82-year old chocolate bar is, according to Nestle, so unique that it should be protected by law.
In response to the court’s ruling, a spokesman for Nestle stated: "Nestle is disappointed by the Court of Appeal judgment and is considering next steps. KitKat is much loved around the world and its four-finger shape is well known by consumers. Nestlé's four-finger shape has been granted trademark registration in many countries of the world, for instance Germany, France, Australia, South Africa and Canada, further protecting it from imitations."
This ruling comes on the heels of litigation between Nestlé and rival candy marker Cadbury's owner, Mondelez. Last year, Justice Richard Arnold of the British High Court of Justice held that Nestlé had not promoted the chocolate bar’s shape as one of its selling points, thereby standing in the way of protecting the shape as a trademark.
“In these circumstances it seems likely that consumers rely only on the word mark KitKat and the other word and the pictorial marks used in relation to the goods in order to identify the trade origin of the products. They associate the shape with KitKat (and therefore, with Nestlé), but no more than that,” he said. “Therefore, if it is necessary to show that consumers have come to rely on the shape mark in order to distinguish the trade source of the goods at issue, the claim of acquired distinctiveness fails.”
Cadbury is, of course, happy with the outcome. "We are pleased with the Court of Appeal's decision today and welcome their conclusion,” the company said in a statement on Wednesday. "As we have previously stated, we do not believe the shape of the KitKat bar should be protected as a trademark in the UK."