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The Dispute Resolution Department’s case of the week:

Cadbury v Nestle – The latest battle in the decade long “chocolate wars” was decided this week by the Court of Appeal. 

Nestle sought to register the shape of the four-fingered KitKat bar as a trademark and argued that the shape was iconic and should be protected by law. Nestle also argued that the KitKat is popular all over the world and that consumers in many countries recognised its shape. They have successfully obtained trademarks in numerous other countries for the shape of the bar. Cadbury, owned by Mondelez, objected to Nestle’s attempts, arguing that the shape of the chocolate bar should not be protected and referred to a popular Norwegian chocolate bar which used the same four fingered shape. Interestingly, it was Nestle that objected to Cadbury’s attempts to trademark the shade of purple used on it’s packaging in 2013. 

The Court of Appeal ruled in favour of Cadbury, rejecting Nestle’s attempts to register the trademark. 

The case is a good example of difficulties inherent in trademarking the shape of products or packaging and sets a high bar for similar applications in the future. It is clear from the case that it is necessary to prove that consumers identify a brand or the origin of a particular product solely from its shape or packaging in order to succeed in protecting these less traditional trademarks. 

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