Nestle has won the latest stage in a long-running battle to safeguard the look and feel of the humble KitKat from wannabes.
Nestle registered the shape of the four-finger KitKat as a trademark in 2006, but rival Cadbury won an appeal that invalidated the registration.
However, Nestle has continued to fight, and on Thursday was revealed in the Telegraph to have won a European-wide ruling from the board of appeal at the Community Trade Mark Office that reinstates the trademark on the chocolate bar and stops rival companies from producing similar products.
“This decision helpfully highlights the 'layered' approach which can be taken in building trade mark protection around a core brand," David Thompson, an associate at the law firm Michelmores, told Huff Post UK.
“By way of example, Nestle already protects the well-known 'Have a break' slogan associated with the product – which was itself the subject of a protracted European legal battle involving rival confectioner Mars."
In addition, Cadbury secured a High Ruling that prevented rivals using the purple colour on its Dairy Milk wrappers in 2012.
Thompson added that the issue of shape marks, particularly in relation to confectionary, has received significant attention in the last few years.
“In stark contrast to the KitKat decision, the Swiss chocolate maker Lindt recently failed in its bid to register a European 3D shape mark to protect its well-known gold foil wrapped chocolate rabbit," he explained.
“Such decisions emphasise that obtaining a registered 3D shape mark will usually require the applicant to collate compelling evidence of 'acquired distinctiveness'. This evidence must demonstrate that the consumer is able to readily identify the product's origin, by reference to its shape, colour and/or configuration."
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