After Ruling, Nestle Likely Muttering 'Gimme a Break'

UK appeals court rules against KitKat maker in attempt to trademark bar's shape
By Elizabeth Armstrong Moore,  Newser Staff
Posted May 20, 2017 6:00 AM CDT
Judges Burn KitKat: Shape Has 'No Inherent Distinctiveness'
A four finger KitKat bar is photographed in London Wednesday May 17, 2017. A court on Wednesday, May 17, 2017, rejected an attempt by Nestle to trademark the four-fingered shape of the KitKat chocolate bar in Britain. (Dominic Lipinski/PA Wire   (/PA via AP)

Nestle may find itself muttering "give me a break," but perhaps with an expletive tossed in at the end. The company on Wednesday lost its latest attempt to trademark its four-finger chocolate bar shape in the UK, in what has been a 7-year battle. The Guardian reports that after months of deliberation, a three-judge appeals panel explained in 16,000 words that the KitKat shape is not a "badge of origin" and has "no inherent distinctiveness." Ouch. The global confectionery has been fighting its rival Mondelez, the US owner of Cadbury, on the issue since 2010. The BBC reports that the two have gone at it over other would-be trademarks, calling out Cadbury's failed attempt in 2013 to register the shade of purple used in its Dairy Milk packaging (Pantone 2685C, for the curious).

Shapes can in fact be trademarked if proven distinctive enough (think Coca-Cola's bottle, or, on the candy front, Toblerone's "zigzag prism" bar), but it's often a slog, and a long one at that. An intellectual property lawyer explains what's at stake in cases like these: Trademarks "confer monopoly rights, so I can see entirely why Nestle thought ... let’s register it, because we can stop anyone from producing a bar in four fingers." And they aren't the only ones to produce such a bar; the similarly-shaped Norwegian bar Kvikk Lunsj, which means "quick lunch," has been around since 1937—nearly as long as KitKat. Nestle could try to get its case in front of the UK supreme court. (In other food news, a new Pepsi flavor isn't wowing soda fans.)

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