Have a break, have ‘four trapezoid bars aligned on a rectangular base’  may not exactly roll off the tongue, but this could by the implication of a recent judgement of the European Court of Justice (CJEU) over whether the design of Nestlé’s KitKat is sufficiently distinct to warrant trademark protection.

Upholding an earlier ruling, the CJEU held that the design was not sufficiently well known throughout all member states of the European Union to warrant protected trademark status.

Rival confectioner Cadbury, now a part of the multinational conglomerate Mondelēz, embarked upon a legal challenge in 2007 following an application to register the KitKat design as a trademark.

In her 2010 treatise, Chocolate Wars: From Cadbury to Kraft – 200 years of Sweet Success and Bitter Rivalry, Deborah Cadbury highlighted the historic competition amongst their various Quaker founders. This latest chapter will have hit both sides in the pocket, will the CJEU ordering that they meet their own legal costs for this recreational litigation.

By Paul Sullivan FRSA

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