Cadbury and Nestle fights over the Kit Kat trademark

Cadbury is reportedly fighting efforts made by their rival confectioner, Nestle, to trademark the shape of its famous chocolate snack, Kit Kat.

According to reports from SmartCompany, the UK 3D trademark registry accepted the shape of the Kit Kat on the ground that the chocolate’s shape is distinctive. The case has now been referred for guidance on EU law to the European Union Court of Justice.

This type of trademarking in Europe comes down to whether customer recognise the shape and colour of a product as indicating that a trademark owner is the source of the goods and Bill Ladas, special counsel at King & Wood Mallesons, told SmartCompany a key issue in the Kit Kat case is what standard of proof is needed.

Last year in September Cadbury lost its effort to stop Whittaker’s from trademarking the term ‘Berry Forest’, on the basis that it closely resembled Cadbury’s ‘Black Forest’ chocolate flavour and would cause confusion among the customers.

And it was only last week that entrepreneur and advocate for Australia’s food manufacturing industry, Dick Smith, lost the name rights to his OzEmite spread as the name sounds too similar to another yeast spread, AussieMite – the founder of which, Rodger Ramsay, commenced legal proceedings in 2011.

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