Sir: Cadbury’s failure to thwart the registration of the four-fingered Kit Kat shape as a European trademark is a major coup for Nestlé (‘Nestlé fends off Cadbury’s trademark challenge’, thegrocer.co.uk, 3 January).
It is invariably difficult to secure a trademark registration for a product shape. The problem often lies in proving that the shape performs the function of a trademark in its own right, independent of other brand indicators.
This is particularly tricky for low-cost products where the level of attention paid by consumers is correspondingly low, and for shapes that do not depart substantially from the norm. Trademark offices and the courts have also tended to be resistant to evidence from consumer recognition surveys.
So it is no mean feat that Nestlé has persuaded the European Community Trade Mark Office - largely through survey evidence - that its Kit Kat shape has acquired trademark distinctiveness.
The decision could yet be appealed at Europe’s General Court. But, for now, it should provide encouragement for companies for whom shapes, colours or physical attributes are key brand differentiators - including Cadbury!
Ashley Benjamin, trade mark attorney, Dehns