No break for KitKat from European Court of Justice

The “four finger” shape of a KitKat is not distinctive enough for it to be registered as a trademark, according to a European Court of Justice (ECJ) ruling.

The ECJ was ruling in Société des Produits Nestlé SA v Cadbury UK Ltd (Case C-215/14), concerning Nestlé’s application to register the shape as a 3D mark in the UK. Nestlé argued that the shape was distinct even without packaging or the word KitKat embossed on the chocolate. Cadbury disagreed.

The ECJ ruled that the shape of the bar on its own was not enough to identify the chocolate bar’s origin and therefore could not be registered as a trademark. The case will now return to the High Court for a final ruling.

Lee Curtis, partner at intellectual property firm HGF, says: “This is a dispute about one company, Nestle, trying to monopolise the shape of a product, a KitKat chocolate bar, and in time stopping others using that shape, most notably in this case Cadbury.

“Taken with the original comments from the high court judge, the ECJ decision would imply that a 90% consumer recognition of the shape of the bar by the British public is not enough to give Nestle that monopoly right.”

Nick Bolter, trademark and copyright partner at Cooley (UK) LLP, says: “It is my view that the exclusion from trademark registration of shapes dictated by function was intended to prevent businesses using trademarks to create monopolies that extend beyond the protection of indicators of origin.”