Memo to Nestle and Cadbury: it’s chocolate for fuck’s sake – who cares what shape it comes in?

I received this rather mystifying missive from one Ed Miekle (left), a lawyer today.

First, the colour purple, now, the shape of a chocolate bar – Nestle has triumphed in the latest stage of a series of legal spats with Cadbury. The confectioner has been allowed to stop rivals producing products in the shape of its famous four-finger KitKat after a European-wide ruling from the board of appeal at the Community Trade Mark Office (CTMO). Ed Meikle, intellectual property partner in DWF’s food sector group (DWF is a middle-ranking UK law firm), looks at the implications of the case for other food manufacturers.

“Nestle will be delighted with this ruling from the CTMO, having lost out to Cadbury before Christmas over the right to use the colour purple on its packaging.

“Design rights have a relatively short lifespan and Nestle’s, which relate to its four-finger chocolate biscuit, expired long ago. However, with the recognition that shapes can fulfil the function of a trade mark, canny businesses have been quick to re-protect their intellectual property rights, not least because unlike design rights, trade mark rights can last forever.

“Nestle’s three-dimensional trade mark registration for KitKat now sits alongside other well-known shapes such as Kraft’s Toblerone, which is registered for its unique triangular shape. Similarly, Coca-Cola’s distinctive curved bottle, although no longer protected by design law, now enjoys indefinite trade mark protection so long as it remains in use.

“Although obtaining trade mark registration can be difficult, it is worth food manufacturers actively considering this sort of protection for products with distinguishing appearances. Not only will they be able to stop their competitors from copying a design more easily, but such registered IP assets will add significant value to their businesses.”

Ed is a partner in DWF’s food sector group, He specialises in brand protection law, advising household names on the development, management and protection of brands. And this sort of stuff..

When I was a boy people advised me to be a lawyer, but I couldn’t be fagged with all that detail (and stuff). Silly me.


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About Stephen Foster

Stephen is a former editor of Marketing Week and London Evening Standard advertising columnist. He wrote City Republic for Brand Republic and is a partner in communications consultancy The Editorial Partnership.