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Swiss chocolate manufacturer Nestlé has been trying to prevent competitors from creating chocolate snacks that look like its own KitKat brand for a decade. It has succeeded in about a dozen countries, but the attempt in the United Kingdom once again failed.
British judge says “no way!”
The company feels its KitKat shape is so unique that it claims to have an exclusive right to manufacture and sell it. The KitKat name and red packaging is protected by a trademark, but its shape is not. The main reason is that there has been a similarly-shaped Norwegian treat since 1937, called Kvikk Lunsj (“Quick Lunch”).
The British Court of Appeal dismissed Nestlé’s claim against Cadbury, a British chocolate brand which is part of Leo manufacturer Mondelez. The judge felt the shape of the chocolate-covered waffle is not “inherently distinctive”, because customers base their purchase on the red packaging and the name, not on the shape of the snack itself.
Nestlé immediately announced it would appeal the decision, pointing to a Court of Justice ruling about KitKat’s distinctive features in a least ten EU countries, including the Netherlands. The Court ruled in December that this does not apply to four other countries (Belgium, Greece, Ireland and Portugal), a ruling Nestlé will also appeal. It seems its war against competitors will last for quite some time.
