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| Copycat KitKats on cards as European court of justice rejects trademark bid | Copycat KitKats on cards as European court of justice rejects trademark bid |
| (35 minutes later) | |
| Nestlé has suffered a setback in its attempt to trademark the shape of its KitKat chocolate bar in the UK after a long legal battle with its rival Cadbury. | |
| A decision by the advocate general of the European court of justice – whose opinions are usually followed by the EU court – says Nestlé’s attempts to trademark the KitKat shape in the UK do not comply with EU law. As a result, Nestlé may now have to face competition from rivals making copycat KitKats - chocolate bars the same shape and size as the bars advertised for decades under the slogan “Have a break, have a KitKat”. | A decision by the advocate general of the European court of justice – whose opinions are usually followed by the EU court – says Nestlé’s attempts to trademark the KitKat shape in the UK do not comply with EU law. As a result, Nestlé may now have to face competition from rivals making copycat KitKats - chocolate bars the same shape and size as the bars advertised for decades under the slogan “Have a break, have a KitKat”. |
| The Swiss company’s attempt to own the four-fingered shape of a KitKat has been opposed by Cadbury and the two confectioners have been involved in a lengthy tit-for-tat row. Cadbury, which is owned by US group Mondelēz, dug in against Nestlé’s attempt in 2010 to protect the shape of the KitKat, after Nestlé blocked Cadbury’s attempt to trademark the hue of purple used for its chocolate wrappers. | The Swiss company’s attempt to own the four-fingered shape of a KitKat has been opposed by Cadbury and the two confectioners have been involved in a lengthy tit-for-tat row. Cadbury, which is owned by US group Mondelēz, dug in against Nestlé’s attempt in 2010 to protect the shape of the KitKat, after Nestlé blocked Cadbury’s attempt to trademark the hue of purple used for its chocolate wrappers. |
| Nestlé, the world’s biggest food group, sold £40m of KitKats a year in the UK between 2008 and 2010. The first KitKat was sold in Britain by Rowntree & Co in 1935 and the shape has changed little since then. Nestlé acquired Rowntree in 1998. | Nestlé, the world’s biggest food group, sold £40m of KitKats a year in the UK between 2008 and 2010. The first KitKat was sold in Britain by Rowntree & Co in 1935 and the shape has changed little since then. Nestlé acquired Rowntree in 1998. |
| Iain Connor, intellectual property lawyer at Pinsent Masons, said: “It seems that the old ‘elephant test’ isn’t enough for trademark lawyers. Despite the fact that consumers know a KitKat when they see one, the advocate general has said that the court needs to see evidence of a level of acquired distinctiveness way beyond ‘mere recognition’.” | Iain Connor, intellectual property lawyer at Pinsent Masons, said: “It seems that the old ‘elephant test’ isn’t enough for trademark lawyers. Despite the fact that consumers know a KitKat when they see one, the advocate general has said that the court needs to see evidence of a level of acquired distinctiveness way beyond ‘mere recognition’.” |
| He added: “The opinion is entirely consistent with the court’s previous refusal to grant trademark protection for Lego bricks and so comes as no surprise.” | He added: “The opinion is entirely consistent with the court’s previous refusal to grant trademark protection for Lego bricks and so comes as no surprise.” |
| Nestlé’s lawyer, Simon Malynicz, had told the EU judges: “This is not a serious case about monopolising shapes at all.” He said it was about a chocolate bar that is “highly recognisable and much loved in the UK”. | Nestlé’s lawyer, Simon Malynicz, had told the EU judges: “This is not a serious case about monopolising shapes at all.” He said it was about a chocolate bar that is “highly recognisable and much loved in the UK”. |
| He added: “These cases have to be understood in the context of a long tradition in the UK of refusing registration to all shape trademarks, no matter how distinctive they have become.” | He added: “These cases have to be understood in the context of a long tradition in the UK of refusing registration to all shape trademarks, no matter how distinctive they have become.” |
| The UK Trade Marks Registry had turned down Nestlé’s application to protect the chocolate bar in the UK in 2013 following Cadbury’s opposition. | The UK Trade Marks Registry had turned down Nestlé’s application to protect the chocolate bar in the UK in 2013 following Cadbury’s opposition. |
| Cadbury was taken over three years ago by US giant Kraft Foods, which then spun off its global snacks business and called it Mondelēz, based in Illinois. Cadbury is now part of Mondelēz, which also produces Trident gum and Oreo biscuits. | Cadbury was taken over three years ago by US giant Kraft Foods, which then spun off its global snacks business and called it Mondelēz, based in Illinois. Cadbury is now part of Mondelēz, which also produces Trident gum and Oreo biscuits. |