Nestlé struggle to trade mark KitKats

More than one billion KitKats are bought per year, the product is hugely popular across Europe, North America and Asia and the bar’s design is thought to be widely recognised. Nestle, the manufacturer of KitKats, have recently tried to prevent other products being produce with the same four-fingered design by protecting the chocolate bar with a trade mark in the UK.

Their application for trade mark was initially refused in 2013 by the High Court after Nestlé’s rival Cadbury opposed the application. The KitKat manufacturer has received a further blow from a European Court Lawyer who has said that their UK trade mark application does not comply with European law.

This opposition and rivalry from Cadbury has been ongoing for over 10 years during which both companies have fought against each other in the courts. Until recently, Cadbury had a trade mark for their specific purple colour (pantone 2865c) they use in their branding and wrappers but Nestlé finally won their continual objection to the trade mark in 2013.

Nestle believe that even with the red-and-white wrapper removed and with the no branding on the chocolate bar itself, a four-fingered chocolate bar would still be recognisable as a KitKat and therefore should be lawfully regarded as distinct. A survey was conducted where people were shown a picture of an unbranded four-fingered chocolate bar and 90% of these people stated ‘KitKat’ in their comments which would suggest some truth to their belief.

However in the eyes of the law, for a trade mark to be granted, the characteristic in question must be clearly distinguishable from the goods or services of another company. With this recent incident it would appear that the feud between Nestle and Cadbury is likely to continue as they both battle to get one over their rivals.

Trade mark protection can be particularly complex but is a vital step to take in order to protect your brand or products from being copied by other businesses. Here at Rollingsons Solicitors our Company and Commercial department offers a comprehensive trade mark service which covers the application process, licensing of trade marks, acquiring and assigning trade marks, the resolution and litigation of infringement disputes, initial research and advice prior to registration. For more information or to arrange an initial consultation, please contact us on 0207 7611 4848.

Sunad Joshi, Commercial and Litigation & Dispute Resolution.