KitKat patent rejected
The shape of Nestlé’s candy bar deemed not sufficiently distinctive
Michael Sandelson & Sarah Bostock
On September 16, Court of Justice of the EU (CJEU) judges ruled that the KitKat shape was not sufficiently distinctive to allow consumers to associate the four-finger form with this chocolate wafer.
Nestlé had argued that the shape of the bar should be considered as distinct even without its red and white packaging or “KitKat” being engraved in the chocolate.
This verdict is the latest chapter in the 10-year international KitKat-Kvikk Lunsj clash between confectionary giants Nestlé and Mondelēz International.
Swiss conglomerate Nestlé owns and makes KitKat, originally made by Rowntree’s in the UK. The chocolate snack, which the York-based company started producing in 1935, was known as “Rowntree’s Chocolate Crisp.” Renamed as “KitKat Chocolate Crisp” two years later, it was rebranded once again as “KitKat” after WWII. Nestlé acquired Rowntree’s in 1988.
U.S. company Mondelēz International owns both the UK’s Cadbury and Norway’s Freia. Freia makes Kvikk Lunsj, which was first launched in 1937. The chocolate snack, which shares KitKat’s appearance, is a firm favorite amongst Norwegians.
“The principles confirmed by the CJEU (EU) strongly support findings made by the UK’s Intellectual Property Office previously when it denied Nestlé’s attempt to register the shape of KitKat bars as a trademark. Nestlé will find it difficult to show that KitKat bars are trademarkable in light of the CJEU’s ruling,” said intellectual property law expert David Woods of Pinsent Masons.
Kristian Hvilen, Corporate Affairs Director Nordic at Mondelēz International, comments to The Foreigner that “we are pleased by this ruling by the European Court of Justice, which is in line with our contention that the shape of the KitKat bar is not distinctive enough to be protected as a trademark.”
The case now returns to the UK High Court. Nestlé stated that it was “pleased” with the CJEU’s ruling and looked “forward to the decision of the UK High Court.”
Sally Britton, an intellectual property lawyer at Mishcon de Reya, said Nestlé was likely to continue arguing its case, “even if, as now appears likely, the English court decides that the KitKat shape should not be registered as a trademark.”
Nestlé is not seeking to trademark its two-finger version of KitKat.
It also appeared in the Sept. 25, 2015, issue of the Norwegian American Weekly. To subscribe, visit SUBSCRIBE or call us at (206) 784-4617.