As some of you may be aware the long-running ‘chocolate war’ between Cadbury and NestlÃ© over the shape of the Kit Kat has led to the matter going to the Court of Appeal and a judgement has recently been passed.
The case resulted from an attempt by Nestlé to register the shape of the Kit Kat as a trade mark applying to chocolate products in the UK. Cadbury opposed the trade mark application, mainly on the ground that the shape of the Kit Kat lacked distinctive character.
Nestlé argued that the shape had acquired a distinctive character and when faced with an example of the chocolate without wrapping, consumers would identify it as a Kit Kat. Cadbury argued that this was not the correct way to frame the question, which correctly put was whether ‘consumers had come to perceive the Trade Mark as an indication of origin’.
In the original dispute the Intellectual Property Office hearing officer had concluded that consumers ‘associate the shape with Kit Kat (and therefore with Nestlé), but no more than that. Therefore, if it is necessary to show that consumers have come to rely on the shape mark in order to distinguish the trade source of the goods at issue, the claim of acquired distinctiveness fails.’
After this decision Nestlé appealed and Cadbury cross-appealed and the matter eventually was heard by the Court of Appeal.
The Court accepted the hearing officer’s original finding that whilst consumers may associate the shape with Kit Kat, the shape was not the thing on which consumers relied in order to satisfy themselves that the chocolate was a Nestlé Kit Kat.
The shape of the Kit Kat could not therefore be trademarked.
Case: Société des Produits Nestlé SA v Cadbury UK Ltd  EWCA Civ 358
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