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Lessons to learn from KitKat's trademark battle

View profile for Louise Hebborn
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We are a nation of unashamed chocolate lovers. Last year we Brits consumed more than 600 tonnes of chocolate, with one-in-six indulging every day.

Many of us are used to picking up a sweet treat during our lunch hour, looking for the distinctive packaging, logo and shape. But without the familiar wrapper, would you be able to recognise your favourite chocolate bar on sight?

Nestle thinks you would. The multinational confectionery giant is locked in a long and bitter trademark dispute over their flagship chocolate brand, KitKat. Nestle argues that its chocolate bar’s ‘four-finger’ shape, even without its red and white packaging or logo, is distinctive. So much so that Nestle believes the shape should be considered a UK trademark.

This has been contested, most notably by Cadbury, who has spent the past five years fighting to prevent Nestle from securing exclusive rights to the shape. This would leave the door open to produce similar products themselves.

Nestle’s most recent attempt was dismissed by the European Court of Justice, which ruled that the company had to demonstrate that the public relied on the shape alone to identify the snack. The case will now return to the UK High Court for a final decision.

Nestle’s battle to secure the trademark has its roots in a time when intellectual property law was less rigorous than it is today. Many new products and brands would launch into the marketplace with no protection at all as the era of mass consumerism gathered speed and budding entrepreneurs looked to make their fortune.

Now, with the advent of new, fast moving business models such as crowdfunding and the rise in individual enterprise, it is important for new products to be  properly protected to prevent disputes or incidents of theft and copying by rivals. This is sometimes overlooked in the rush to innovate, secure funding and finally, manufacture new products for the market.

Without proper precautions, a rival competitor can simply produce a ‘copycat’ product. Intellectual property protection can help guard:  

  • The names of your products or brands
  • Your inventions
  • The design or look of your products
  • Things you write, make or produce

Some protections are automatically enshrined in law and will apply from the point of design or first sale. Others require a formal application process, ranging from four months to five years. These protections include trademarks for product names, logos or jingles, the appearance of a product, including its shape, packaging or colour and patents for inventions or products like machines, machine parts or medicines. Some products require more than one of these types of protection.

When considering intellectual property protection for your innovation or product, timing and confidentiality is key. You should keep details of any intellectual property a secret until it is registered and take steps to make sure you secure protection from the relevant bodies as soon as possible.

Our commercial solicitors understand the value and importance of intellectual property and can assist with the protection of such rights to help you get ahead and stay ahead of your competitors. Speak to our intellectual property solicitors on 01616 966 229.