KitKat’s four fingers ‘not distinctive enough’ for UK
London — The four-finger KitKat isn’t a distinctive enough shape to warrant a trademark, UK Court of Appeal judges said on Wednesday, marking a fourth unsuccessful attempt by owner Nestlé to protect the famous chocolate bar.
The decision follows two British rulings and a European judgment in the decade-long efforts to trademark the famous chocolate bar. Mondelez International’s unit Cadbury UK challenged the latest appeal. The EU General Court ruled in December that the chocolate didn’t meet the bar required to deserve a EU-wide trademark protection.
Three appeal judges agreed with lower courts that the evidence didn’t go "as far as to show that the consumer would perceive the bars in the basket as originating from Nestlé and not from others", they said in the ruling. "The distinction may be highly technical, but it is important, because of the nature of the trademark, which gives the trader a monopoly for all time."
KitKat was first sold in the UK in 1935 by Rowntree, with the shape changing very little since then. Nestlé, the world’s biggest food company, bought Rowntree in 1998 and owns the trademark to the bar’s shape in the rest of Europe.
Nestlé said it was disappointed and was considering its next move.
"This judgment does not mean that our four-finger shape is now free for use in the UK or elsewhere," the company said in an e-mailed statement. "Nestlé’s four-finger shape has been granted trademark registration in many countries of the world, for instance Germany, France, Australia, SA and Canada, further protecting it from imitations."
Mondelez said it welcomed the decision: "As we have previously stated, we do not believe the shape of the KitKat bar should be protected as a trade mark in the UK."
The UK Trade Marks Registry turned down the application to protect the chocolate bar in Britain in 2013 following the opposition from Cadbury.
Mondelez, which also makes Oreo cookies, was created in a split of Kraft Foods Group in 2012. The Illinois-based company had an 18% share of the western European chocolate confectionery market in 2016 compared to Nestlé’s 9.4%, according to Bloomberg Industries data.