By: Sharon Urias, Esq.
Candy bars come in all flavors, shapes and sizes: from plain chocolate, nougat, caramel and other flavors: in squares, rectangles, drops and a variety of other shapes; and from snack-size all the way up to king-size, a consumer can satisfy his sweet tooth in a variety of ways.
Although one company’s candy bar may have basically the same ingredients and taste quite a bit like another company’s candy bar, after a trademark ruling in January of this year, it cannot have the same shape.
According to the Huffington Post, Nestle has won a trademark lawsuit against Cadbury. And what, you may ask, is the lawsuit over? Nestle sued Cadbury over their rights to a candy bar shape.
The UK’s Community Trade Mark Office ruled in Nestlé’s favor that Cadbury could not use KitKat’s four-bar shape anywhere in the European Union.
In 2006, Nestle registered the shape of KitKat. Not long after that, Cadbury attempted to invalidate the registration by claiming that a product’s shape could not be trademarked. Cadbury did win its appeal; however, that decision has been overturned in Nestlé’s favor.
Cadbury is famous for their Creme Eggs which fill many children’s baskets at Easter each year. Cadbury also sells Crispello, a candy bar very similar to a KitKat in taste and even shape, having the same four-bar structure.
The UK’s trademark regulators ruled the four-bar structure that Nestle uses has been used by the company for so long customers worldwide associate the shape with the Nestles’ KitKat candy bar.
Feuds between Nestle and Cadbury are nothing new, as the two companies have been involved in trademark lawsuits in the past. The most recent feud between the two confection companies had to do with packaging. Cadbury won the right to the exclusive use of its own shade of purple in packaging candy.
There are those who question the wisdom of granting trademarks for shape and color. Regardless of how others think, both the U.S. Patent & Trademark Organization and the UK’s Community Trade Mark Office have granted trademarks in both these categories in recent years.
