Cadbury wins trademark battle against rival Nestlé over KitKat shape

CADBURY has won a bitter legal battle over its sweet rival Nestlé. The outcome could make or break the KitKat.

THOUGH their competing chocolate bars may be sweet, Cadbury and Nestlé are bitter rivals. But it seems the Dairy Milk maker may have got one over on its Swiss rival thwarting an attempt to have the shape of the famous KitKat bar trademarked.

And the reason is because of a little known Norwegian chocolate bar called a Kvikk Lunsj.

The British ruling could lead to a wave of copycat KitKats flooding supermarket shelves.

It’s the latest in a series of long running skirmishes between Cadbury and Nestlé, two of the world’s largest chocolate manufacturers.

KitKats have existed, more or less unchanged, since 1935 when they were launched as Rowntree’s Chocolate Crisp. They were soon renamed KitKat after the KitKat Club, a famous London political club of the 18th century.

Nestlé took ownership of the brand when it bought Rowntree’s in 1988.

While the word “KitKat”, its red packaging and the slogan “Have a Break” are already trademarked, the shape of the bar itself, is not.

Nestlé has argued the shape of the KitKat chocolate bar was distinctive enough that it should be legally protected. Picture: Dominic Lipinski/PA Wire

Nestlé had wanted to register the shape of the four-finger chocolate snack to prevent rivals creating their own versions.

But UK-based Cadbury was having none of it and objected in the UK Court of Appeal. After months of deliberation, probably involving a lot of breaks for KitKats, the court said the shape of the wafer covered chocolate bar had “no inherent distinctiveness”.

People relied on the packaging to identify a KitKat, the court argued, not the shape of the product itself.

Cadbury successfully argued that KitKat was not the only bar to have fingers — in fact it owns one of them.

But it was another product that put paid to Nestlé’s argument that the KitKat shape was a one-of-a-kind.

In Norway, a chocolate bar called Kvikk Lunsj, or “Quick Lunch”, has existed since 1937. With four chocolate wafer fingers enrobed in milk chocolate it is almost identical to the KitKat.

And who owns Kvikk Lunsj? Cadbury, through its parent company, Mondelez.

So the argument goes, how distinctive can a KitKat be if for 80 years a near identical product has also existed?

Mondelez seems to have more luck than Nestlé in trademarking chocolate bars. It owns Toblerone and the bar’s distinctive triangle shape is already protected.

“Nestlé is disappointed by the Court of Appeal judgment and is considering next steps,” a spokesman told the BBC.

“KitKat is much loved around the world and its four-finger shape is well known by consumers”.

The chocolate giant is said to be considering an appeal to the UK Supreme Court.

In December, Nestlé lost a similar court case which would have protected the KitKat shape across the European Union.

The Norwegian chocolate bar Kvikk Lunsj is also made up of chocolate fingers.

Protecting shapes is fraught with difficulty. For instance, while Coca-Cola’s distinctive contoured bottle is a trademark, Lindt was unsuccessful in getting the same protection for its Easter bunny shape. Lego bricks are not a protected shape but Lego figures are.

The outcome is sweet revenge for Cadbury which lost an earlier court case with Nestlé.

In 2012, Cadbury successfully argued that the famous shade of purple used on Dairy Milk bars — known as Pantone 2865c — should be its alone to use in the UK.

But the following year, Nestlé won an appeal against the ruling which means any confectioner can use Cadbury’s hue on their packaging.

Although, Cadbury has warned out they’ll come down like a ton of chocolate chips on anyone who gets too close to the look of its Dairy Milk packs.

“Our colour purple has been linked with Cadbury for a century and the British public has grown up understanding its link with our chocolate,” a Cadbury spokesman said at the time.

But any one in Australia thinking they can rush out a KitKat lookalike chocolate bar should think again. One of the few countries around the world where Nestlé has successfully trademarked the KitKat shape is right here in Australia.