By Yayi Ding
Many of us grew up indulging in the famous four-fingered chocolate wafer known as the KitKat. Such glorious memories! However, KitKat may no longer have exclusive rights to its four-fingered design, because of ongoing lawsuits with its competitors.
KitKat is a product of the Swiss Nestle Company, and is produced by the Hershey Company in the United States. Needless to say, Nestle has had disputes with a fair share of its competitors, including British candy-maker Cadbury. In 2012, Nestle opposed Cadbury’s trademark application for its “purple packaging,” arguing that the mark lacked any distinctive character. Nestle won that battle, which allowed Nestle and other confectioners to sell candy with the same purple-colored wrapping.
The latest dispute between the two companies arises from Cadbury’s attempt to block Nestle from trademarking its four-fingered wafer design. The case is currently before the European Court of Justice in Luxembourg, the highest court in the European Union legal system. At a hearing on Thursday, April 30, Cadbury alleged that Nestle’s four-fingered wafer design trademark would greatly increase the number of attempted registrations on marks that lack the essential functions of a true trademark. In response, Nestle alleged that it is not seeking a monopoly, but is simply trying to protect a chocolate bar that is “highly recognizable and much loved by the UK.” As of Monday, May 4, the court has not reached a decision, and we continue to hold our breath on word regarding our beloved treats.
It appears that Nestle might have good reason to protect its four-fingered wafer design, because it has faced similar opposition in other jurisdictions. In 2013, it lost a trademark suit in a Singapore court, which annulled Nestle’s Singaporean trademarks for the KitKat shape. However, in the same week, a South African court ruled in favor of Nestle on the same issue, and prevented another vendor from selling wafers that were “confusingly similar” to KitKat’s four-finger shape.
How are these lawsuits likely to affect the state of KitKat in the US market? Could Cadbury’s current lawsuit in the European Court of Justice play a key role? Only time will tell!