EU Court Lawyer Advises Against Granting Trademark For Kit Kat Shape
from the trademark-barred dept
There's apparently something of a chocolate war going on in Europe, where rival confectioneries all go around trying to trademark silly aspects of their products while everyone else blocks them. Cadbury reportedly kicked all this off some years back, attempting to trademark the color purple (seriously), before Nestle came in and objected, getting the trademark overturned. The most recent edition of this sweet-war is Nestle's consternation over not being able to trademark the Kit Kat bar's four-bar shape.
This probably requires some brief background. See, the UK is the birth-place of the Kit Kat bar. Back in 2013, Nestle decided that the candy had developed a distinction through its shape such that the four-bar shape deserved its own trademark (there was no attempt made on the two-bar fun-sized version). Nestle initially went to the Office of Harmonization of the Internal Market (OHIM), which essentially assigns trademarks for the EU, in 2012. But in 2013, the UK declined to confer a trademark on the Kit Kat shape. The reason for declining was that four bars of chocolate weren't a distinct enough thing to warrant its own mark.
Cadbury is the one objecting to the Kit Kat shape trademark and they've kept up the pressure, despite Nestle's appeals. The latest development is likely the penultimate nail in this issue's coffin, however.
Confectionery giant Nestle's attempt to trademark the shape of its four-finger KitKat bar in the UK does not comply with European law, a senior European Court lawyer has said. The opinion of the advocate-general effectively ends Nestle's attempts to trademark the snack.That's because the courts generally listen to the advocate-general on these matters, not to mention that the UK has already been predisposed to denying the trademark and the fact that every next EU entity that gets involved seems to have a different opinion likely means the UK courts will simply affirm the denial of the trademark.
Now, it's perhaps worth noting that we, the Techdirt staff, have had some discussions about this case previously and there's been some disagreement about it. Some of us think that the Kit Kat shape is indeed distinct enough to warrant a mark. Others, including myself, do not. My reason is pretty simple: I tend to see trademark as chiefly a way to keep consumers from buying one product when they had intended to buy another. With that in mind, I've never heard of anyone buying a Kit Kat bar outside of the wrapper that covers up the shape, so I think the idea of getting a trademark on the shape is kind of dumb. That said, I should note the UK court didn't take to that line of thinking, asserting only a lack of distinction in the shape.
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Filed Under: europe, kit kat, shape, trademark
Companies: nestle
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Re:
Trademark has a primary role of protecting consumers against similar looking objects with indeterminate quality.
KitKat in this case seems to be claiming that the shape of the product should not be allowed to be copied by Shit Chat or Kid Kap since the shape is confusing customers.
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Re: Re:
I don't know if the EU has a rule like that, but I was pointing out that if they do, that could be another grounds for rejecting a mark on the shape of the chocolate bar. The time period for a patent on that shape has long since expired, however, which is why I didn't suggest patents as an alternative for the manufacturer.
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Kit Kat Chunky is where it's at anyway, unless you're getting the random Japanese flavours.
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So why they need a trademark is beyond me /s
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The Colour Purple
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Re: The Colour Purple
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Now, it's perhaps worth noting that we, the Techdirt staff, have had some discussions about this case previously and there's been some disagreement about it. Some of us think that the Kit Kat shape is indeed distinct enough to warrant a mark
This is one of the things that make this site great. You see, even the writers themselves may differ in opinions and regardless Tim could publish his line of thinking anyway. Never mind the numerous articles where different points of view are exposed and scrutinized even if the author himself can't decide if he agrees or not. And when things aren't what they seem they will come forth and admit they were wrong (Karl's 'apology' to Wheeler was the most recent epic example).
When I see things like these I find the occasional trolls to be even more amusing in their antics...
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Re:
No, but as ever that's not really the point. This is about control. If they monopolise certain features or basic design elements, they can shut down competitors, lock out imports from other markets, etc. Customer confusion is just the excuse they use to claim they're doing it for the public rather than profit.
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