A few months ago we wrote a blog post on Nestlé’s battle with Kraft over the unique purple color of Cadbury chocolate bar wrappers. While Nestlé lost the battle over color, it recently won the battle over shape.
Nestlé has claimed victory in its trademark suit in the UK’s Community Trade Mark Office against Cadbury over the rights to the shape of its KitKat candy bar. The victory secures the right for Nestlé to block other candy makers from selling products with the four-bar KitKat structure anywhere in the European Union.
This dispute was not your standard trademark case as it focused on the shape of the KitKat bar rather than the trademark. In 2006, Nestlé successfully registered the shape of the four-bar KitKat. Cadbury attempted to invalidate the registration on the grounds that a single company could not obtain a trademark monopoly on a generic feature such as a shape.
Cadbury won in the first instance, but Nestlé fought back and the decision was overturned in Nestlé’s favor. The trademark regulators found that Nestlé has used the four-bar shape for so long that consumers worldwide associate that shape with the Nestlé brand.
While the case is unusual, it is not unique. Last summer, the U.S. Patent and Trademark Office granted Hershey’s a trademark for the shape of its signature candy bars. The PTO found that the evidence Hershey’s presented demonstrated that the design of the Hershey bar had acquired distinctiveness and could be registered.
Candy makers and other product designers should be on notice that both here in the United States and across the pond, trademark protection seems to be expanding beyond the name of the product.