Disharmony over KitKat shape mark

By Roland Mallinson

While we have a harmonised trademark law in the EU, it does not always lead to the same results everywhere. We are reminded of this by the recent conflicting decisions of OHIM and the UKIPO concerning the registrability of Nestlé’s KitKat shape, which has been in use for 75 years. Mars had opposed the UK application and applied to cancel the CTM registration.

Although OHIM’s Board of Appeal found in favour of Nestlé, the UKIPO favoured Mars and held the shape to be unregistrable. This was on the grounds that the essential features of the shape serve a technical function and result from the nature of the goods themselves. In concluding this, the UK decision reads more like a patent judgment than a trademark one, with nuanced references to angles of trapezoidal sides ranging between 8° and 14°, minimum depths of grooves and matters of production efficiency…

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