Nestle has suffered a set back in its quest for chocolate world domination yesterday when the EU General Court overturned the registration of the shape mark for the Kit Kat four finger bar.
Nestle applied for the mark back in 2002, when there were only 15 member states in the EU. The General Court said that the EU Intellectual Property Office (EUIPO) had erred in its decision-making by not requiring market research from all the (then) EU member states. It had instead granted the mark on the basis of market research in only 10 member states, rather than all 15 states. The General Court has told the EUIPO to relook at the decision.
This decision comes a couple of years after Nestle was involved in another high profile trade mark dispute, this time with Cadbury, over the registration of the colour purple as a trade mark.
Nestle is unsurprisingly hugely protective of its branding and is constantly looking at how best to protect it, using a combination of trade marks, registered designs, copyright and good old fashioned manpower. It is constantly on the lookout for marks being applied for which could conflict with its registered marks and designs and also for other traders using signs and designs which could either be confused with or devalue its intellectual property.
The approach Nestle takes to the protection of its intellectual property is a good lesson for other businesses. Often, businesses do not know the value of their intellectual property until something or someone threatens it, which may be too late. Being proactive can ensure the strength of your brand and your protection.
"The four finger-shape has been used throughout the EU by Nestle for decades and is known by consumers as being Kit Kat," Nestle told the Independent. "At the same time, the judgement sets a high threshold for trade mark applicants to register shapes as EU trademarks by requiring evidence of acquired distinctive character in all EU Member States. We continue to review the findings and consider our position."