David Lilenfeld Blog The intellectual property blog of David Lilenfeld

20Jan/160

Nestlé Can’t Get a Trademark Break for its Kit Kat Bar

By David Lilenfeld on January 20, 2016

Kit Kat, the iconic chocolate-covered wafer candy, was first produced in Great Britain in 1935.  Nestlé understandably wanted to register the Kit Kat’s four-finger shape as a trademark, filing an application there in 2010.

In arguing for registration of the trademark, Nestlé’s relied heavily on a survey its experts conducted.  In administering the survey, Nestlé presented a photograph of the four-finger shape to consumers and asked them – to describe what they saw.  According to Nestlé, more than 90% of those surveyed made a reference to the Kit Kat bar, upon viewing the four-finger shape.  

However, the British courts were not enticed and cooked up another bad break for Nestlé.  The European Court of Justice Court refused to acknowledge the four-finger anatomy of the Kit Kat bar as a protectable trademark.  The rejected trademark, described in the case as the “shape of a four finger chocolate-coated wafer," likely leaves wide-open the market for other four finger chocolate covered candies, undoubtedly leaving a bad taste in Nestlé’s mouth.

First up to explore that wide-open market could be Nestlé’s rival, Cadbury, who led the charge to ensure the high court rejected Nestlé’s four-finger trademark application.

By the way, David Lilenfeld's research into this story revealed the Kit Kat is made by a division of Hershey, under a license from Nestlé and taste great.

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