Litigation and trademark registration decisions throughout the world are now struggling with an important question: should Nestlé be permitted to have a trademark in their Kit Kat candy bar shape? It seems that the answer varies by country.
Recently, Nestlé has become embroiled in litigation in South Africa over its trademarked chocolate Kit Kat bars. IFFCO, a United Arab Emirates company created and sold candy bars in the same shape under its Quanta Break and Tiffany Break names. Nestlé claimed that these delicious candy bars are “virtually identical” to their Kit Kat candy bars. IFFCO then sought to annul Nestlé’s Kit Kat trademarks in South Africa. [1]
In November 2013, the South African Court determined that, although the Kit Kat finger-shaped candy bar is a well-known and fully valid trademark, IFFCO was not seeking to pass their candy bars off as Kit Kat bars. Nestlé, upon appeal, seeks to argue that their use of essentially identical chocolate finger shapes amounted to trademark infringement and dilution. [2]
Furthermore, despite receiving European-wide protection last year for the candy bar, Nestlé may not receive trademark protection for the Kit Kat in the United Kingdom either. Their attempt to trademark the shape of their Kit Kat bar was opposed by Cadbury, likely as a response to Nestlé’s earlier opposition to Cadbury’s registration of their purple wrapper color. [3] This case was recently referred to the European Union Court of Justice for additional guidance .[4]
Surely, the shape of the Kit Kat bar is distinctive; but the distinctive packaging, in addition to the Kit Kat imprint upon each chocolate wafer, should be enough to prevent consumer confusion. Is it appropriate for trademark law to give Nestlé an effective monopoly on a particular candy shape? Clearly the South African Court did not think so and it will be interesting to see how this plays out in the United Kingdom.