Swiss transnational food and drink company, Nestlé, has lost a bid to trademark the shape of the four-finger KitKat bar in the UK.
For years, Nestlé has been in a long and strenuous legal battle with Mondelez, a US-based business that owns the multinational confectionery company Cadbury, over the unique shape of Nestlé’s popular KitKat bar.
However, on Wednesday, a court of appeals ruled against Nestlé and their trademark, saying the shape of the candy bar could not be protected. A spokesperson for Nestlé said the were obviously disappointed in the results but will push on to take the next step.
“Nestlé 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.”
Nestlé’s next step could possibly be the Supreme court. Nestlé had had originally registered the three-dimensional shape of its four-fingered chocolate bar in 2006. However, Cadbury appealed to cancel Nestlé’s registration and won in 2012. Now the fight has gone all the way to the court of appeals, with the next step being the Supreme Court.
A Mondelez spokesman was obviously happy with the court’s decision on Wednesday and said they do not believe the shape of the KitKat should be protected in the UK.
“We are pleased with the Court of Appeal’s decision today and welcome their conclusion. As we have previously stated, we do not believe the shape of the KitKat bar should be protected as a trademark in the UK.”
During an interview with The Guardian, Clare Jackman, an intellectual property lawyer at Norton Rose Fulbright, said the fact the two multinationals were prepared to battle through the courts for so long showed the value of what was at stake.
“Trademarks are very important and valuable business assets. They confer monopoly rights, so I can see entirely why Nestlé thought, ‘our four-finger bar KitKat has been around for ages, let’s register it because we can stop anyone from producing a bar in four fingers’”, she said.
“It is typically brand owners in this space that will spend the money and push the boundaries, in trying to get as much protection as possible, because at the end of the day trademarks can potentially last forever, so it really is a significant monopoly right.”
Jackman also said she would not be surprised if the two companies took their fight all the way to the Supreme Court.
“I’m not going to rule it out because I think these are two brand owners who are prepared to push this as far as it can go.”