Nestlé’s Kit Kat Not Able to Register It’s Three-Dimensional Shape as Trademark
Nestlé’s attempt to trademark its classic four-finger chocolate is at odds with European Union law. Nestlé believes that since, over time, the four-fingered chocolate bar’s physical form had acquired distinctive character associated with the company since its launch in 1935, the design itself should become a trademark. Nestlé tried to register the three dimensional shape as a trademark with the UK Intellectual Property Office, back in 2010, but was not successful due to Cadbury’s opposition.
Advocate General (AG) of the Court of Justice of the European Union (CJEU), took the view that the shape of the Kit Kat bar would not be eligible as a trademark because, according to the terms of EU legislation, trademarks that are free of distinctive character, or signs that consist exclusively of the shape which results from the nature of the goods themselves, or the shape of goods is necessary to obtain a technical result, and therefore cannot be validly registered. The AG claimed that distinctiveness can be either inherent in the product or acquired through the use of the mark. The test of whether a particular three dimensional mark fulfills this requirement must be based on the views of an average consumer of the category of goods at hand, who is reasonably well-informed, observant and cautious. As a result of these factors, the AG said that, even though, there might be a general recognition of the shape of the Kit Kat bar, this did not necessarily mean that consumers perceive it as the indicator of origin. For this reason, the AG did not consider the Kit Kat bar shape as capable of identifying the origin of the goods by itself.
This issue will now be moved before the CJEU for a final judgement, after which, the UK High Court will give its decisions based on the merits of Cadbury’s opposition to the registration of Nestlé’s Kit Kat three dimensional trademark.