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Can the shape of the Kit Kat be a trade mark?


Advocate General Wathelet issued his opinion on 11 June in the next instalment of the ‘chocolate wars’ between Nestlé and Cadbury. This case concerns whether the four finger bar shape of Nestlé’s KitKat can be registered as a trade mark. If registered Nestlé could use the trade mark to prevent other manufacturers making chocolate in identical or similar shapes.

The Advocate General has recommended to the Court of Justice that it is not sufficient for Nestlé to prove that consumers in the UK recognise the shape as being that of the KitKat and associate it with Nestlé. In order for a trade mark to be registered the evidence must establish that only that shape as opposed to any other trade marks which may be present indicates without possibility of confusion the origin of the product. His recommendation, if followed by the court, will be of relevance to all trade marks and not just those for the shape of products.

The Advocate General has also recommended that one of the exclusions that applies to shape trade marks also applies to the method of manufacture. This is of some significance in this case because the evidence was that some aspects of the shape of the product were the product of constraints in the moulding process.

His opinion has been widely reported in the press as suggesting that Nestlé will lose its attempt to obtain a monopoly over the shape of the Kit Kat.

The advocate general’s decision  may be found here  

Nicholas Saunders of Brick Court Chambers, instructed by the Cabinet Office, appeared on behalf of the United Kingdom.