Give Me A Break: Nestlé loses Trademark battle for the ‘four fingered’ shape
Many consumers have come to know Kit Kat bars for their unbelievable crunch and design of the four bars with breakable ridges that let you enjoy each piece separately or to share with a friend. The ‘four fingered’ candy bar design has been deployed since 1935 when it was sold in Britain by Rowntree & Co. At that time, the bar was called Chocolate Crisp. Since, Nestlé has turned the design into a recognizable shape that is known by many people, both old and young. Nestlé purchased Rowntree & Co in 1998.
In 2010 Nestlé filed for the trademark of the four-fingered design but met opposition from rival chocolatier and candy maker Cadbury who opposed the trademark in fear of Nestle having a monopoly. The two chocolate makers have had previous battles in the past as Nestlé prevented Cadbury for using a particular shade of purple used in the packaging of Dairy Milk. Nestlé’s application was initially granted, however, Cadbury challenged and the case was removed to the High Court and the CJEU in Britain where the ‘four fingered’ shape was put through further scrutiny.
Nestle has had success in the past with trademarking shapes of their chocolate. They have successfully trademarked the shape of their Walnut Whip. However, this time they were not as fortunate as the trademark for the ‘four fingered’ shape was denied. The European court of justice ruled that the KitKat’s shape was not distinctive enough for consumers to associate it with the chocolate covered wafer.
In Mr. Justice Arnold’s written opinion he ruled that consumers relied on the name of KitKat and the pictorial marks used in relation to the goods. He said, “they associate the shape with KitKat (and therefore with Nestlé), but no more than that.” He went on to rule that Nestlé had not demonstrated that consumers have come to rely on the shape mark in order to distinguish the trade source of the goods at issues.
Sharon Daboul, a trademark attorney at law firm EIP who was not involved in the case, said “The question is whether a consumer would look at the four-finger chocolate bar and straight away know it was a KitKat, without the logo or wrapper. Consumers will tend to be influenced by a brand name and the outer packaging of a product rather than its shape alone, so the threshold for registering shapes as trademarks is high.”
Nestlé is appealing the decision.