Trademark battle over the shape of Kit Kats

Confectionery giants Cadbury and Nestle are locked in a battle over, Nestle’s attempt to trademark the shape of the humble Kit Kat Chocolate bar.

The case was being heard by the High Court in London, following Cadbury’s opposition to Nestle’s trademark application over the shape of  Kit Kat. Cadbury’s opposition was successful, with the UK Trade Marks Office upholding the opposition, which was then referred to the Court for review by Nestle. In a surprise turn, Judge Richard Arnold adjourned the matter and referred it to the European Union Court of Justice for guidance on EU law.

This case appears to arise in retaliation for Nestle’s recent win in the U.K. Court of Appeal, preventing Cadbury from obtaining trademark protection over the purple colour used by Cadbury for its milk chocolate bars.

In Australia, shapes may also be trademarked. Shape trade marks are generally registrable where the shape of a product is distinctive, so as to give a product a unique appearance, distinguishing it from others products.

Shapes are three dimensional, one such example of the unique shape of the glass Coca Cola bottles. Shapes that are in common use cannot be trademarked, for instance a circle or a square, as other traders are likely to use these shapes.