Have a break, have an unbranded two-fingered chocolaty snack: Nestlé loses bid to trademark the shape of Kit Kat

Cadbury has delivered a major blow to Nestlé in the battle for confection perfection by blocking the company’s attempt to trademark the two-finger shape of its world-famous Kit Kat bar.

The ruling by the Intellectual Property Office found that while chocolate fans recognised the ‘fingers and grooves’ identity of the Kit Kat, it was not the primary reason they bought it. Rather the snappable lengths of wafer were designed to aid portioning, while it was the brand that drove global sales. The argument means Cadbury’s could be free to introduce a rival breakable bar in the UK.

However, in an unusual complication, Nestlé does hold a registered trademark at a European Union level, which could undermine Cadbury's victory. Despite attempts by the makers of Dairy Milk to block the Community Trade Mark earlier in the year, Nestlé successfully convinced EU officials that the public associated the hotly contested shape with Kit Kat exclusively.

A representative for Nestlé said the Swiss company was “perplexed and disappointed” by the UK ruling.

"Kat Kat was launched over 75 years ago and is one of the most iconic shapes of any chocolate bar, recognised around the World,” they said. “We are perplexed and disappointed with this national decision by the UK Intellectual Property Office. The UK is the birthplace of Kit Kat and we are assessing whether to appeal."

A partner at a legal firm that specialises in trade mark law told The Grocer that Nestlé would probably contest the UK ruling, but voiced concerns that the pro-Cadbury decision could be more legitimate than that taken at the EU.

“It seems likely that Nestlé will appeal the decision,” Lee Curtis of Harrison Goddard Foote, adding: “The hearing officer of the UK application suggested that he cam3 to a different decision to the Community Trade Marks Office as he had the benefit of ‘better’ evidence from experts.”

“He also made the comment that although the shape of the bar may have become associated with Nestle to a degree in the minds of the public by way of the high volume sale of the product, it did not act as a trademark as it was wrapped and only viewed post sale.”

The Kit Kat furore marks the latest in a series of bitter battles for chocolaty trademarks. Last year, Cadbury once again bested their rivals by successfully claiming legal rights over the distinctive deep purple colour of its Dairy Milk packaging.