SA has a break, but Europe shows Kit Kat the finger
Company's European legal woes continue over the shape of its iconic choccie
If you saw an image of a four-fingered chocolate, with the brand name airbrushed off it, would you recognise it as Nestlé’s iconic Kit Kat?
It seems not enough people in Belguim, Ireland, Greece and Portugal were able to do that, which is why Nestlé has just suffered a setback in its quest to dominate the four-fingered trapedoid shape chocolate market in Europe, where rival companies have been selling “copykat” versions for years.
Nestlé has spent millions arguing in courts across Europe since 2002 that it has the right to trademark not only the name, but also the shape of its Kit Kat bar.
On Wednesday, the European Court of Justice dismissed Nestle’s appeal, which sought to reverse an earlier court decision that had ruled against the company, effectively saying the shape of a Kit Kat may not be trademarked.
Arch rival Mondelez International, the parent company of Cadbury, had questioned the validity of the EU trademark, arguing that Kit Kat “lacked distinctive character”.The judges acknowledged that the “have a break” chocolate – which first went on sale in 1935 and was rebranded as Kit Kat two years later – had ticked enough “distinctive character” boxes in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden and the UK, but they maintained that that wasn’t the case in Belgium, Ireland, Greece and Portugal.
One of Kit Kat’s largest competitors is Kvikk Lunsj (pronounced “quick lunch”), a Norwegian snack that’s also been around for more than 80 years and is now owned by Mondelez.
Kit Kat’s shape is protected in South Africa, Australia and Canada, but Nestlé’s trademark battle in Europe has been tough.
In 2002, the global food giant applied to the European Union Intellectual Property Office (EUIPO) to trademark the Kit Kat shape, and the office granted the mark four years later.
But Mondelez appealed the following year, starting a slew of court cases in Europe.
Responding to the latest setback, Nestlé said it believed the distinctive shape of its four-finger Kit Kat deserved protection as a European trademark, “and the case will now be sent back to the EUIPO Board of Appeal to examine the evidence that Nestlé has filed”.Cape Town-based trademark attorney Abduraouph Kamaar, of De Beer Attorneys, said while the European decision did not apply to South Africa because trademarks are territorial, it was a precedent. Local attorneys could use it to bring an application to overturn the trademark in South Africa, he said.
“But clearly Nestlé is not going to keep fighting to trademark the Kit Kat shape – the brand is far too important to them.”
Trademark or not, South Africans have seen a few Kit Kat rip-offs over the years, including the Tiffany Break.
“Just a few weeks ago I saw a two-fingered version of Kit Kat in a small supermarket in Grassy Park,” Kamaar said. “They are usually inferior quality.”
Nestlé’s Kit Kat is known around the world for its many innovative special editions, in flavours ranging from sweet potato to ruby chocolate.
The brand has a huge following in Japan, with more than 300 limited-edition Kit Kats having been produced in that country since 2000, including edamame soybean, matcha-green tea, red bean sandwich and wasabi.