Cadbury have recently scored another point in their battle against Nestle in the trade mark arena.
Cadbury’s objection to the registration of Nestlé’s four finger Kit-Kat shape has been successful and the UK courts have rejected the application to register the four-finger shape as a trade mark. The UK courts held that the design and shape of the confectionary bar, was created in that way as an aid, to help consumers break the bar with ease. The courts further found that the shape of the bar was not designed in that manner so as to identify the brand, but merely for technical reasons to make it more breakable. With this in mind it was held that due to the technical nature of the design, it could not be registered as a trade mark in the UK (despite the previous decision that it could be registered as a Community Trade Mark!)
The judgement went further to say that the brand identifier was in fact the red packaging. Whilst many chocolate lovers who saw the confectionary bar outside of its wrapper would immediately identify it as a ‘Kit-Kat’. This case is a stark reminder, of the difficulties applicants will have in registering trade marks for shapes, particularly where there is a technical element to the design of the shape in question.