Kit Kat Shape Not a Trade Mark?

The law of intellectual property is seldom simple or without surprises. In 2014, the High Court decided that the ‘corrugated’ shape of the Kit Kat chocolate bar, whilst unremarkable in itself, had acquired a ‘distinctive character’ by way of use over time and hence could be registered as a trade mark by the Nestlé company in the product group that includes chocolate goods of all kinds.

The Court concluded that consumers associate the distinctive shape of the product with the Kit Kat brand. The effect of such a decision would be that other chocolate manufacturers would not be allowed to market confectionery the same shape as the Kit Kat bar.

The decision was opposed by Cadbury and the matter was referred to the Court of Justice of the European Union (CJEU).

The CJEU ruled that a trade mark can only be registered if the applicant can demonstrate that the average consumer of its products would ‘perceive the goods or services designated exclusively by the mark applied for, as opposed to any other mark which might also be present, as originating from a particular company’. In other words, Nestlé would have to show that the shape of the product alone was sufficient to identify it, without the use of the brand name or any other trade mark.

The practical effect of this decision is that it sets the hurdle very high for applications for registration of trade marks based on the shape of goods sold. The case will now return to the High Court for determination.

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