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EU Court Lawyer Advises Against Granting Trademark For Kit Kat Shape

from the trademark-barred dept

Thu, Jun 25th 2015 9:09pm — Timothy Geigner

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

14 Comments

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cpt kangarooski, 25 Jun 2015 @ 9:30pm

I don't know if it's relevant over there or not, but I would say that it is also functional; the shape allows multiple chocolate coated wafer bars to be physically conjoined for packaging but easily separated by the end user.
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Nunc_ (profile), 25 Jun 2015 @ 9:58pm

I don't think that it should be possible to trademark the shape. For one, there are just a few practical ways to make a chocolate snack, and all varieties have been used up. Besides that, brand recognition is more than just the shape. I could imagine that a red wrapper in combination with the 4 bars could be trademarked, each individual part should not.
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Anonymous Coward, 25 Jun 2015 @ 10:51pm

Re:
But then we are probably closer to patent than trademark. Function is part of patent law while appearance is copyright and/or trademark territory.

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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PaulT (profile), 25 Jun 2015 @ 11:26pm

"the four-bar shape deserved its own trademark (there was no attempt made on the two-bar fun-sized version)"

Kit Kat Chunky is where it's at anyway, unless you're getting the random Japanese flavours.
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G Thompson (profile), 26 Jun 2015 @ 12:44am

Nestle' has been saying for ages with Kit-Kat that all you needed was a break!

So why they need a trademark is beyond me /s
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CharlieBrown, 26 Jun 2015 @ 1:34am

The Colour Purple
The colour purple is a trademark of Cadbury in Australia according to their wrappers here. Also the colour blue is a trademark of ANZ bank as well.
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Ninja (profile), 26 Jun 2015 @ 5:02am

I'd like to bring this slightly off topic to highlight this:

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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cpt kangarooski, 26 Jun 2015 @ 5:24am

Re: Re:
In the U.S., functional aspects of a product are generally not eligible for trademark protection because trademarks are not supposed to substitute for patents not are they supposed to put competitors at a disadvantage for reasons other than the relative reputation of the branded goods.

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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John Fenderson (profile), 26 Jun 2015 @ 8:11am

Re: The Colour Purple
In the US, UPS has a trademark on the color brown.
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James Burkhardt (profile), 26 Jun 2015 @ 8:28am

I would like to point out that Cadbury wanted a trademark on the specific shade of purple it uses in its UK packaging, which Nestle had started using with a new bar with the seeming intent of confusing UK customers. I don't otherwise know why "My Purple Bar" would be considered a good name for a chocolate colored chocolate bar. So while I agree the trademark probably was correctly not granted, to say that it was a ridiculous fight discounts the real questions about nestle's packaging decisions.
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AnonyBabs, 26 Jun 2015 @ 9:47am

I'm with the court on this one. Frankly, I have little patience for the notion that people are too stupid to figure out if they're buying a Kit Kat or a different four-bar candy, or whether their purple-wrapped bar is from Cadbury or Nestle. Sure, some people are that stupid, but is it such a significant portion of the customer base to justify all this legal wrangling? Makes me that much more determined to limit my chocolate purchases to local, high-quality chocolatiers instead of these giant purveyors of mediocre product.
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Anonymous Coward, 26 Jun 2015 @ 12:31pm

Even if it were otherwise worthy of trademark protection, sectioning candy into four separable pieces is a functional design element and should therefore be ineligible.
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Anonymous 5-year old, 26 Jun 2015 @ 3:43pm

I usually know that I'm buying a Kit Kat bar because it says "Kit Kat" on the wrapper.
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PaulT (profile), 27 Jun 2015 @ 1:22am

Re:
"Sure, some people are that stupid, but is it such a significant portion of the customer base to justify all this legal wrangling?"

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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