That really takes the biscuit: KitKat TM bid fails once more

A trade mark battle that has been progressing for the last seven years, Nestle have been set back yet again with their latest bid for trade mark success has fallen short.

The subject of this battle has been a favourite tea time treat, the four finger KitKat which Nestle maintains as being worth the protection of a registered trade mark.

However, many think otherwise with the initial opposition and continuing objections made by Cadbury, and their US owners Mondelez.

The application has been considered by many courts, the latest being the UK Court of Appeal, who agreed with previous rulings and held the four-finger design had no ‘inherent distinctiveness’.

For a trade mark to be protected through registration, distinctiveness is key as that is what creates the essence of a trade mark as a concept.

This finding of a lack of distinctiveness occurred in both the UK High Court, whose decision was appealed to the Court of Appeal, as well as the Court of Justice for the European Union, who found the design to be non-compliant with EU trade mark law which mirrors that in the UK.

This is an important milestone for the rest of the confectionary industry, however, as it makes way for legitimate copyKats, pardon the pun, to pop up on the market with no fear of legal action. This news will especially be music to supermarkets ears who are renowned for trying their luck with brand copying chocolate bars.

While it may seem that this battle is finally over, it seems Nestle are not ready to give up. A spokesperson for the company has stated that while they are disappointed in the ruling, it has not put a stop to their efforts in trying to secure the trade mark. They believe their next step may be another appeal to the UK Supreme Court, which is the top court in the UK.

The battle may be won or there may be another round to come, The Trademarkroom will bring you any updates as they happen.

For more information about how a registered trade mark can protect your brand, contact The Trademarkroom team today.

By Ellis Sweetenham