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No break for KitKat in court

Confectionery multinational Nestlé has lost the latest round of its long-running battle with rivals Cadbury to trademark the shape of the KitKat bar in the UK. The court of appeal ruled that the four-finger design had “no inherent distinctiveness”.

After deliberating for months, three appeals judges delivered their judgment this week in a 16,000-word ruling that found the KitKat shape was not a “badge of origin”. The judges also noted that the chocolate bar’s shape had not been central to its marketing in recent years: “It has nothing, therefore, to do with the informed choices that consumers make between similar products.”

The judges heard that Nestlé had spent between £3m and £11m a year advertising and promoting KitKats between 1996 and 2007.

The ruling marks the latest stage in a seven-year battle over the KitKat trademark between Nestlé and Mondelēz, the owner of Cadbury.

Nestle’s appeal followed a UK high court ruling in January last year that blocked the trademark attempt. The European court of justice had previously found that the four-fingered shape, breaking apart with a snap, was not distinctive enough to merit a trademark and that such a designation would not comply with European law.

The ruling clears the way for competitors, including major supermarkets, to produce their own copycat KitKats without fear of legal consequences.

However, a Nestlé spokesperson indicated the Swiss firm was considering its next move. The company could potentially try to take the case to the UK supreme court.

The four-fingered battle is not the only lengthy legal dispute between the two confectionery giants. In 2004, Cadbury attempted to trademark the shade of purple it uses for its Dairy Milk bars, registering Pantone 2685C in a move that was initially successful before the court of appeal backed Nestlé challenge in 2013. An attempt last year by Cadbury to resurrect an earlier trademark on the colour was rejected by the high court.

Did you know?

The first KitKat-type bar was sold in Britain by Rowntree in 1935, when it was called Chocolate Crisp, and the shape has changed little since then. Nestlé acquired Rowntree in 1998.