KitKat foiled again as Nestlé loses trade mark battle

Monday 30th July 2018

On Wednesday, the European Court of Justice rejected a trade mark appeal by Nestlé, which argued that it owns the four-figured wafer shape of household favourite, KitKat.

Most people expected Nestlé to lose this battle, even after they spent tens of millions and 16 years fighting over it. The real question is, why did the brand owners go so far to protect the shape?

Securing the trade mark would have given them long-lasting protection. The shape of any new product can be protected as a design, but this only counts for a limited time, up to 25 years. Trade marks can last forever and trade marking shapes can be a clever way to get indefinite protection.

Nestlé clearly wanted to flex its muscles as the world’s biggest food and drink company and deter competition from the likes of Mondelez. Most companies would shy away from producing a similar-looking product based on the uncertainty of what a large competitor will do – even if the large company would eventually lose. Nestlé may have even earnt more from keeping others out of the market than it has cost them in legal fees.

Don’t forget as well that the case has given Nestlé plenty of free publicity. This is one of the biggest stories in the news and all the focus is on the product. A bad legal result, but fantastic marketing.

Read Mark’s comment about the KitKat trade mark battle on The Grocer.