What’s going on here?
The chocolate brand Kit Kat loses a legal battle to protect its famous four bar design from its rivals.
What does this mean?
Nestle, the producers of KitKat, have finally lost a 16 year case in which they sought trademark status for the shape of their chocolate bar under EU law. As a result, its major competitors, such as Cadbury, will be given free rein to copy the product within the EU. Why did Nestle fight so hard to stop this? Nestle’s key argument was that the design of a Kit Kat, four distinct pieces which can be easily separated, is a unique selling point and gives Nestle an edge over its competitors, therefore it deserved legal protection from imitations. However, the EU did not agree that the chocolate bar was distinguishable from any other product.
Why should firms care?
The reason behind the EU’s decision stretches further and potentially has large implications for intellectual property law. Kit Kat had to prove their distinctive status in every country in the EU, not simply a minimum level of countries as Nestle argued should be the case. This sets a much higher standard for protection of intellectual property. This has certainly given a sugar rush to IP lawyers who are struck by the implications of such a high bar for trademark status. This can be seen in Lindt’s attempts to assign trademark status to their chocolate bunny which failed on similar grounds to Kit Kat, However, other chocolate companies, such as Toblerone, have been able to pass the EU’s stringent test despite seemingly having no substantially different argument to that of Kit Kat’s or Lindt’s. Therefore, it can be asked whether the EU is taking a pick and mix attitude to what counts as IP protected? Regardless of the answer, the impact is huge and companies are now free to copy Kit Kat at lower prices.
Article written by Rianna L.
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