Nestle has won, after 7 years, trademark battle against Cadbury over the four-fingered shape of the Nestle product – KitKat. Nestle is the Swiss multinational company in snack food, health-related goods industry. Nestle is the largest food company in the world by its revenue. Their products include baby food, bottle water, cereals, coffee, chocolate bars and many others. The most popular products are Nespresso, Nescafe, KitKat, Maggi and Nesquick. Nestlé’s largest competitors are Kraft Foods, Unilever and Mars incorporated. Cadbury is a British company and best known for its confectionary products. Cadbury was established as retailer of tea, coffee and drinking chocolate. The most popular products are Dairy Milk chocolate, the Crème Egg and Roses selection box. Cadbury`s main competitors are Jacobs Suchard, Nestle and Mars Incorporated.
Kit Kat is one of the Nestle popular products which was invented in 18th century by Rowntree`s of York (than was acquired by Nestle). Kit Kat has unique four-fingered shape, which makes it recognizable as the product of Nestle. The following case is all about Kit Kat`s shape and weather Nestle can have a trademark on the shape (not the name – which is more common). Nestle and Cadbury were involved in a lawsuit over the four finger KitkKat`s shape. Nestle -the world’s biggest food company, has succeeded in stopping rivals from copying the shape of the four-fingered bar after a seven-year legal battle.1 Neste had registered shape of KitKat as a trademark in 2006 but Cadbury appealed against this application.
In my paper I will discuss claim over trademark between Nestle and Cadbury, and the case status. This case is unusual in the way of concerns; the focus is not on the trademark name, but a trademark shape. By implying that we would not see an infringement in the case, but trademark ruling. KitKat shape
The case of KiKat, as mentioned above, is an unusual trademark wrangle between Cadbury and Nestle over shape of chocolate bar. Neste had introduced Kit Kat in 1935 and had registered KitKats shape in 2006. Cadbury applied to invalidate the registration on the basis of shape, since one company cannot monopolize shape. The office of harmonization of the Internal Market, which registers EU Community Trade Marks, allowed 3d – shape trademarks2 for sweets, bakery, biscuits, cakes and waffles in 2006, but lacked in application for chocolate, candy and confectionery. Few years later Cadbury disputed Nestle trademark to Cancellation Committee because of the mark was for a 3d-shape rather than over a name.
The Cancellation Committee declared the Nestle trademark invalid. Originally, Cadbury had won its claim. Nestle had appealed and trademark regulators overturned decision after. Regulators reached new decision: as the four-fingered shape Kit Kat was exclusively associating as Nestle product. Nestle had provided evidence of using that shape for long period of time and had provided evidence of KitKat shape was exclusively associated with Nestle across the world and had gathered enough evidence to proof that Nestle had educated the public that chocolate bar with fingered shape is originated by Nestle. Case in flash
In 2007 Cadbury filed a declaration of invalidity against Nestle, the request was directed against all the good covered by Nestle. Cadbury had thought that trademarking shape of the chocolate bar is a limitation of choice for consumers. In the proceedings parties submitted their observations and supporting documents. Nestle had submitted the following evidence to proof the KitKats shape was exclusively associated with them3: Overview of the worldwide sales volume, turnover and advertising cost for the 1995-2007 years; Set of documents related for a Kit Kat consumption in the United Kingdom; Promotional leaflet in which history of KitKat presented ;
Compilation of the launch dates of the four fingered chocolate bar in the European Union (Uk 1937, Italy 1960, Austria 1988 and etc.); Marketing research, concerning market share;
List of commercial and CD (containing examples);
Nestle internal financial figures, market share, advertising expenses . Even though trademark is commonly the mark, motto or device, the shape of a product is considered trademark too, because consumers can identify the source of were the product originated. By submitting above evidence it was clear that trademark elements had been met: Kit Kat`s shape is distinctive – sufficient for consumers to identify manufacturer, suggestive – its clear for consumers that four-fingers shape is KitKat taste and even fanciful – Kit Kat had been massively invented by Nestle. Conclusion:
Cadbury now has to decide whether or not it wants to appeal against the decision. The latest ruling over KitKat`s shape will prevent similar companies from producing similar bars of chocolate; it is now exclusively associated with Nestle. It was significant win for Nestle, since the four-finger shape became synonymous with its product. Nestlé’s case follows history of legal battles between the two companies. In 2012 Cadbury secured trademark rights to the purple color used on its packaging. Intellectual property office had awarded particular shade of purple to chocolate bars and drinking chocolate to Cadbury.
Nowadays a lot of trademark cases are existing. Analyzing the importance of trademark, we can conclude that companies are very concerned of being exclusive and protecting its intellectual property. A lot of trademark cases exist because of technology progress, it is so much easier today to advertise online, have the market research done online, surveying the product satisfaction and etc. Since multimedia is our everyday routine, rivals can easily caught the consumer’s attention (by using already existing trademark) or converse the existing relationship with the product.
1. Office for Harmonization in the internal market http://www.ie-forum.nl/backoffice/uploads/file/IEForum%20OHIM%20Board%20of%20Appeal%2011%20december%202012,%20zaak%20R%20513_2011-2%20(Nestlé%20tegen%20Cadbury%20Holdings%20Limited).pdf 2. Cadbury thwarted over KitKat design as Nestlé wins battle to prevent rivals copying four-fingered bar – http://www.dailymail.co.uk/news/article-2256648/Cadbury-thwarted-KitKat-desig