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How Nestle failed to trademark KitKat’s shape in the U.K.

What has Nestle struggled to prove KitKat has a unique shape?

The U.K. Court of Appeal recently decided that the shape of a KitKat bar is not distinctive enough to deem it worthy of a trademark. However, in other countries, including Australia, they have ruled that KitKat's shape does deserve a trademark. 

Find out how Cadbury blocked Nestle's trademark for the shape of KitKats in the U.K. and what is required to successfully trademark a shape in Australia.

The court case 

Nestle argues that the four-fingered shape of KitKat bars is absolutely distinctive.

In other countries, including Australia, they have ruled that KitKat's shape does deserve a trademark.

However, the British court ruled in favour of Cadbury, which argued that KitKat is not the only bar shaped like this and that they in fact owned one of those rival four-fingered bars: the Norwegian product called Kvikk Lunsj. This product has been around since 1937 and is owned by Cadbury through its parent company, Mondelez. 

After this ruling, copycat versions of the shape could soon appear on shelves. Imitation of well-known brands is already a popular tactic by discount supermarkets such as Aldi and Lidl, the BBC says.

As a result, "Nestle is disappointed by the Court of Appeal judgment and is considering next steps," a Nestle spokesperson announced. 

Proving shape distinctiveness

In September 2015, Nestle actually tried to secure a shape trademark with the European Court of Justice. But they struggled to do so because it was hard to measure shape distinctiveness if subjects were also showed the KitKat brand name – the name "KitKat" is obviously more recognisable.

The European judges were therefore not convinced, the BBC reports.

4-F Vision #mybreak

A post shared by KITKAT (@kitkat) on

Consider other famous brands that have secured trademarks for their product's shapes such as Coca-Cola's bottle and Lego's figures. Lego bricks, however, are not protected.

The two main things you want to prove to get a shape trademark are that it:

  • makes your goods or service distinguishable from competitors.
  • does not already exist as a product in the marketplace.

As this KitKat case shows, it can be a fraught process proving that you have a unique shape, so it's a good idea to get legal advice for your trademark. Contact Alder IP today so that our lawyers can advise you on the best ways to provide evidence of a unique shape in your application.