Which chocolate bar is made of chocolate-covered wafers and has 4 fingers? The answer is – any chocolate bar.
Copy-cat KitKats could be hitting the shelves near you following a decision by the advocate general of the European Court of Justice, who said that Nestle’s attempt to trade mark the recognisable 4-finger shape does not comply with EU law.
The courts have, throughout time, been chock full of similar cases. Previously, Nestle had blocked an attempt by Cadbury to trade mark the particular hue of purple which is used for its wrappers and advertising, though Biomedical Scientists may argue that this is sensible given the different ways in which humans can see the same colour (remember the blue and black dress debate?)
Economists may be interested in the implications of the case on competition in the market, as the Swiss company’s efforts to protect the KitKat shape have been fiercely opposed by Cadbury and two other confectioners, who may now create rival products.
Lawyers should consider the refined requirement that a product’s “distinctiveness” needs to go beyond “mere recognition”, the shape alone must distinguish that product as being made by that company. A legal comparison between the trade mark application of Lego bricks, which was also unsuccessful, and Coca-Cola bottles, which was successful, would also be of interest. The trend may be explained as an unwillingness to allow companies to monopolise particular shapes, where the shape in question is not seen until after the product has been purchased.
We recommend pondering these things while you have a break, and a chocolate covered 4-fingered wafer snack which may or may not be a KitKat.