Attempts by Nestlé to trademark the shape of its four-bar KitKat have ended in failure, leaving the brand open to cheap imitations and copycats.
A UK high court ruling was issued on Wednesday claiming Nestlé KitKat was not instantly synonymous with four-bar shape without any of its packaging or branding.
However, the confectionary company has vowed to appeal the ruling.
Sharon Daboul, a trademark attorney at EIP, told The Drum: “The question is whether a consumer would look at the four-finger chocolate bar and straight away know it was a KitKat, without the logo or wrapper.
“Consumers will tend to be influenced by a brand name and the outer packaging of a product rather than its shape alone, so the threshold for registering shapes as trademarks is high. However, whilst is it rare to win trademark protection for shapes, it is not impossible; the Toblerone shape and Nestlé’s Walnut Whip are both protected.
“The hurdle is arguably higher for bigger brand owners like Nestlé and Cadbury, whose brand names and packaging are far more famous than the shapes of their products,” she concluded “Allowing registration of the KitKat shape would have given Nestlé a valuable monopoly and competitive advantage over other confectionary manufacturers, one of the reasons why Cadbury has been keen to stop them.”
A spokesperson for Nestlé said: “KitKat is much loved and the iconic shape of the four-finger bar, which has been used in the UK for more than 80 years, is well known by consumers," a spokesman said.
"We believe that the shape deserves to be protected as a trade mark in the UK and are disappointed that the court did not agree on this occasion."
Last year, the advocate general of the Court of Justice of the European Union (CJEU) said the application for a trademark should be rejected.