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Is Kit-Kat at risk of losing its iconic shape?

In an on-going battle between two of our nation’s favourite brands, Cadbury and Nestlé, could Britain’s iconic Kit-Kat be set to lose its distinctive shape? As an initial application to register it as a Trade mark has been declined, taking matters to the Court of Justice for the European Union.

A trade mark, in basic, is a sign that you can use to distinguish your business’ goods or services from those of other traders. This can prevent characteristics of your business being stolen ranging from a company logo to slogan. To register a trade mark for your business the sign must already have or have acquired a distinctive character. 

In 2010 Nestlé filed to register the shape of their Kit-Kat as a trade mark on the basis it had acquired distinctive character through the course of its life span of more than 80 years! Rivals Cadbury were quick to recognise this development and shortly opposed their application. After numerous developments it was eventually decided that the trade mark could not be registered as the shape of the bar results from the nature of the product itself (a chocolate bar) and the grooves which form four chocolate ‘fingers’ were necessary to break the product for consumption.

Nestlé and Kit-Kat now face the Court of Justice for the European Union where they are currently awaiting a final ruling. Nestlé claims that over time the shape of the Kit-Kat bar has become distinctive and as a result, a significant proportion of the population would associate the shape with the product. Further research by Nestlé also shows that 90% of consumers associated the word Kit-Kat when shown a representation of the Trade mark. As a lunch time favourite across all of Britain the staff at Howlett Clarke believe all must recognise its iconic shape, however, do you associate it directly with Nestlé and Kit-Kat?

If Nestlé are unable to obtain trade mark protection for the shape of its Kit-Kat bar then they run the risk of a number of copycat products being produced by large competitors, such as Cadbury. This could have a seriously detrimental effect on the current and particularly future success of Kit-Kat as more like-for-like products enter the market.

Ultimately this case highlights how fundamental the protection afforded from a registered trade mark can be to your business. Your business’ unique selling points can help consumers distinguish your business from your competitors and it’s essential you protect them.

If you would like to get in touch with Howlett Clarke with regards to your Business and protecting your Intellectual Property, or if you have any queries about your brand or trade marks, then feel free to do so we would be more than happy to assist. You can contact Tariq Sayfoo via telephone on 01273 327 272 or email via: info@howlettclarke.co.uk.

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