26th Jan 2016

Have a break – have a four fingered untrademarked Kit Kat

So you might know that Apple and Samsung spend their lives litigating against each other for patent infringement, design right infringement and because they can. It’s been happening in the world of chocolate too, with the main protagonists being Cadburys, who were foiled in the attempt to register the colour purple for chocolate (they may come again on this, it was mainly because they tried to cast their protected area too widely); and Nestle, who opposed the application. Now had they been the old Quaker families who liaised to run these businesses (Nestle bought Rowntree), they may have sorted it out easily, over a cup of hot chocolate (no whipped cream and marshmallows, have you got no taste?).

Nestle have been trying to register the shape of a four finger Kit Kat as a trademark, and of course Cadburys have opposed that. That latest judgment of the High Count came down last week – after the case has been across to the European Counts of Justice, and then returned.The convoluted ruling now is that to show “acquired distinctive character” (and thus be eligible for trade mark registration as a shape), consumers must perceive the goods or services as originating from a particular undertaking because of the sign – or shape, in this case. In this case – so far, since this could be appealed – the court’s view is that Nestle have failed to show an acquired distinctiveness for its shape.

So do trademarks matter? Do intellectual property rights matter?The value these companies place on their distinctive characteristics shows they do. And we’ll still recognise Cadbury’s Dairy Milk by its purple wrapper, and the shape and snap of a Kit Kat. Cup of tea anyone?

Written by Paul Berwin of Berwins Solicitors.

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