Written by: Lex Protector|August 10, 2015
Written By: Rojalin Dhal
Nestle has been in news for all bad reasons recently, especially in India, for its product “maggi”. The damaged reputation has been allayed to some extent by the “KitKat” victory as it won one of the longest running legal battles against Cadbury. As a result of which, the UK’s community trademark office has granted Nestle’s application to trademark the four-fingered shape of kitkat bar and thus prohibiting other confectioners from selling products with the similar shape throughout the territory of Europe.
Although, in 2006 the Swiss giant confectioner had registered the shape of kitkat as a trademark, but was later invalidated on an appeal filed by the rival Cadbury on the ground that the shape does not comply with European law and it lacks distinctiveness. It was also contended that there is a rival bar launched in Norway called “kvikk lunsj” meaning “quick lunch” which is also similar to kitkat shape and is available in some UK shops. Back in 2004, when Mondelez owned Cadbury attempted to trademark the purple colour for use on the packaging of its chocolate product, nestle successfully reversed the trademark by raising an objection in the court of appeal. Now it’s most likely that Cadbury is seeking its revenge by opposing nestle’s application to trademark the shape of its kitkat bar.
The UK trade mark act 1994 defines the term trademark as “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings”. From this it is well settled that the shape of goods can also be trademarked. But in practical, trademarking the shape of good is little tricky as applicant has to ascertain that the shape is distinctive or has acquired distinctiveness and the consumers associate the shape with its origin. Some examples of chocolate whose shape has been successfully trademarked are toblerone’s triangular shaped chocolate and Hershey’s rectangular bar chocolates.
It is argued by nestle that the four fingered shape of its kitkat bar has acquired a distinct character associated with the company and therefore the shape should be trademarked in order to prevent others from making similar products. The four fingered kitkat was first sold in England by Rowntree (which has been taken over by nestle) in 1935 and thus it has acquired distinctiveness by a prolonged use of over 80 years. Even without the red and white packaging and the word kitkat engraved on the bar, 90% of the population associated the shape with kitkat, as cited by nestle in its survey report.
From earlier it was coherent that kit Kat would be gaining the opportunity of trademarking its shape despite of this impending battle. It is so because Kit Kat already has acquired its distinctiveness from the alternative brands of chocolate. Nonetheless, it’s better late than never, is what surely applies to Kit Kat. How late it be at last Kit Kat succeeded. However, all of this disputes has at least given kit Kat a bit of publicity and to some extent it may be welcomed.
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