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Can You Trademark A Shape? Unwrapping The Kit Kat Debate

Nestlé has been trying for years to trademark Kit Kat's signature "four-finger" shape worldwide, but it hasn't been easy.
Posted at 9:17 PM, May 19, 2017

The creators of Kit Kat must be pretty broken up about a recent court decision.

Nestlé, the Swiss food company responsible for Kit Kat's "four-finger" design, wants the candy's shape to be trademarked worldwide. But this week a U.K. appeals court said the chocolate's shape is not distinct enough to trademark. And it's not the first time the company has heard that.

Mondelez International is a fellow candy giant that owns Cadbury and makes Oreos. The company has been locked in an international feud with Nestlé for a decade and firmly disagrees with its trademark request.

It all started when Cadbury filed a request with the European Union Intellectual Property Office against Kit Kat's existing trademark in 2007. The request was initially rejected because the shape had "distinctive character." Then in 2016, that decision was reversed.

Nestlé filed for the trademark in the U.K. in 2010 and faced opposition from Cadbury again. In 2016, the courts ruled against Nestlé. The company's latest appeal also fell flat.

The judges said, "A shape of this kind is not inherently such that members of the public are likely to take it as a badge of origin in the way they would a newly coined word or a fancy name."

But that shape has already been trademarked in Australia, Canada, South Africa and several European countries. 

Coca-Cola's bottle and Toblerone's triangular shape have also been successfully trademarked.

After the latest ruling, Nestlé said it's considering other options. The trademark is extremely valuable because it would give the company a monopoly on candies of that design for all time.