Article July 26, 2018

The KitKat Spat

Some of our long term readers will be aware we have been following the ongoing case of Nestle v Mondelez with some interest, and not just because we’re chocolate fanatics!

Following an expensive 16-year legal battle, with chocolate rivals Cadbury’s (latterly owned by Mondelez) it was ruled that the KitKat’s attempt to trademark their iconic 4-fingered chocolate with a 3D trademark have been unsuccessful. This was the final level of appeal available on the trademark within the EU, as the appeal has now been heard by the highest court, the European Court of Justice.

3D trademarks are a more uncommon form of intellectual property, with Nestle and Mondelez agreeing on at least one thing – and that is that having a time-unlimited monopoly on a shape is a remarkably valuable piece of intellectual property. Whereas a patent or a design right grants the holder a monopoly of 20 and 25 years respectively, trademark protection has an unlimited term, provided the holder maintains the trademark through payment of renewal fees.

Without trademark protection in place, similar 4-fingered chocolate bars can now be manufactured for sale in the EU without risking allegations of trademark infringement brought against them by Nestle. This could be seen as good news for Mondelez directly, who already manufacture the 4-fingered chocolate biscuits Kvikk Lunsj (of Norwegian origin) and the Milka Leo bar, which is sold throughout Europe. It is also possible that own brand manufacturers, such as supermarkets, may enter the 4-finger chocolate market at a competitive price.

Read more here.