Cadbury and Nestlé may be known for vying for the attention of customers in the corner sweetshop, but Nestlé ’s attempt to register the four fingered KitKat saw the confectionary giants do battle in a different arena.
Objections to registering the chocolate bar’s shape as a trade mark have been strongly opposed by Cadbury, adding to the long list of disputes between the two companies, stretching back to Cadbury’s 2004 application for the Dairy Milk purple to be trade-marked. The matter now draws to an end as the Court of Justice of the European Union were unconvinced that the legendary chocolate bar’s four fingered version should be a registered trade mark as it is not distinctive enough.
Rolo v Polo – distinguishing sweets from another
Key to the rationale for allowing trade marks to be registered is so the average consumer can ascertain the origin of the goods from the mark, be that a combination of numbers, a certain design or the shape of the goods.
Consequently, under section 3 of the Trade Marks Act 1994, prospective Trade Marks must have a degree of distinctiveness to be able to be registered. The potential banana skin here is that the everyday consumer may not typically associate shapes with a particular origin. Shapes must significantly depart for the norms of the customs of the sector to satisfy a certain level of distinctiveness that has previously proved too much for the Lindt Bunny and Werther’s Originals.
No celebrations for Nestlé
Key to Cadbury’s objections, were that the KitKat lacks the necessary ‘distinctiveness’ despite Nestlé’s argument that the four-fingered format of its chocolate bar had acquired a distinctive character linked to the company over time. A survey carried out by Nestlé that highlighted a significant percentage of people made a connection with the shape of the chocolate bar to KitKat was not enough to persuade the CJEU to grant trade mark protection. Despite being high in popularity, recognising the chocolate covered wafer as a KitKat falls short of a consumer associating a shape as being a good distinct from one company to another. The decision has now been returned to the UK High Court for a final ruling but the chocolate wars are sure to continue…
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