EU Court Lawyer Advises Against Granting Trademark For Kit Kat Shape

There’s apparently something of a chocolate war going on in Europe, where rival confectioneries all go around trying to trademark silly aspects of their products while everyone else blocks them. Cadbury reportedly kicked all this off some years back, attempting to trademark the color purple (seriously), before Nestle came in and objected, getting the trademark overturned. The most recent edition of this sweet-war is Nestle’s consternation over not being able to trademark the Kit Kat bar’s four-bar shape.

This probably requires some brief background. See, the UK is the birth-place of the Kit Kat bar. Back in 2013, Nestle decided that the candy had developed a distinction through its shape such that the four-bar shape deserved its own trademark (there was no attempt made on the two-bar fun-sized version). Nestle initially went to the Office of Harmonization of the Internal Market (OHIM), which essentially assigns trademarks for the EU, in 2012. But in 2013, the UK declined to confer a trademark on the Kit Kat shape. The reason for declining was that four bars of chocolate weren’t a distinct enough thing to warrant its own mark.

Cadbury is the one objecting to the Kit Kat shape trademark and they’ve kept up the pressure, despite Nestle’s appeals. The latest development is likely the penultimate nail in this issue’s coffin, however.

Confectionery giant Nestle’s attempt to trademark the shape of its four-finger KitKat bar in the UK does not comply with European law, a senior European Court lawyer has said. The opinion of the advocate-general effectively ends Nestle’s attempts to trademark the snack.

That’s because the courts generally listen to the advocate-general on these matters, not to mention that the UK has already been predisposed to denying the trademark and the fact that every next EU entity that gets involved seems to have a different opinion likely means the UK courts will simply affirm the denial of the trademark.

Now, it’s perhaps worth noting that we, the Techdirt staff, have had some discussions about this case previously and there’s been some disagreement about it. Some of us think that the Kit Kat shape is indeed distinct enough to warrant a mark. Others, including myself, do not. My reason is pretty simple: I tend to see trademark as chiefly a way to keep consumers from buying one product when they had intended to buy another. With that in mind, I’ve never heard of anyone buying a Kit Kat bar outside of the wrapper that covers up the shape, so I think the idea of getting a trademark on the shape is kind of dumb. That said, I should note the UK court didn’t take to that line of thinking, asserting only a lack of distinction in the shape.

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