Kit Kat can’t be covered by a Trade Mark

The Intellectual Property Office has decided this year that the share of a Kit Kat is not able to be registered as a trade mark.

In 2010 Nestle decided to try and register a 3D trade mark for the shape of their four-fingered Kit Kat bar, a shape which has barely changed since the bar was launched in 1935. The design Nestle tried to registered didn’t have the embossed ‘Kit Kat’ logo on each finger.

Cadbury’s opposed the registration, arguing that the shape itself was not distinctive, that it’s shape arose exclusively as a result of the nature of the goods and that they bars were required to be that share to achieve a technical result (or, to put it simply, Kit Kats have to be that shape to have fingers of biscuit that can be snapped off!).

The judge in the case found in favour of Cadburys and did not allow the registration on several grounds. The main ones being that the shape was necessary to the function of the product and that as the product was wrapped in an opaque wrapper, the public did not use the shape of the bar to identify the product and therefore it had not developed the necessary distinctive character required to be able to be registered as a trade mark.

Chadwick Lawrence has an experienced trade marks team and if you are looking to register your name, logo or shape as a trade mark, contact Chadwick Lawrence to see how we can help on 01484 519999 or by email at rachelmain@chadlaw.co.uk