Should you trademark a shape?

It’s now the turn of Nestle to try and trademark the shape of a Kit Kat in the UK. This is not an entirely new story as Nestle has been battling the same legal challenge in the EU since the early 2000s, first achieving a trademark, only to have it made invalid after Cadbury disputed it. Here’s a quick summary of the situation today…

Nestle Confectionery is insisting that its four-fingered chocolate bar should become a trademark in the UK, in its own right, regardless of its packaging or the Kit Kat brand name which is stamped onto the chocolate.

Having now been rejected by the High Court and due to opposition from rival confectionery manufacturer Cadbury, Nestle has decided to take its trademark application case to the European Court of Justice.

Nestle argues that the distinctive shape of a Kit Kat has become exclusively associated with the brand as much as the brand name itself and should therefore be protected.

Cadbury, meanwhile, is insisting that other chocolate products have a similar shape as a result of the simple manufacturing method commonly used to create chocolate-coated wafer bars.

You only have to Google to see the level of PR that Nestle is now achieving with this story (our comments included!), so do they take these actions primarily to secure the trademark or is there some element of creating a huge amount of noise around a key brand. You’ll all remember the story of Cadbury protecting its particular colour of purple.

So what exactly can you trademark these days? We investigated a little more so that we could provide some answers.

Words and logos are certainly the most common things for a business to trademark but the list definitely does not stop there anymore.

Product packaging shapes

The iconic Coca Cola bottle shape is perhaps the best known example here. Used widely in their range, it’s always immediately clear what the contents are.

Product packaging designs

Staying with the Coca Cola example, Coke has also registered its red theme with white wave line.

Colour schemes

If you can establish that your customers distinctively recognise your store through a colour scheme, you might well have grounds to trademark it.

Sounds

Really? Think of the Intel jingle; it’s trademarked! It’s all about whether the factor concerned is distinctive and unique to your brand; whether it is a way that your customers recognise your brand.

Colours

Whilst we all know about Cadbury registering a certain colour of purple, UPS also applied to trademark a particular shade of brown.

Whether you are Nestle protecting your iconic Kit Kat chocolate brand or a much smaller operator in the UK confectionery industry, protecting your business by way of trademarks can be a serious consideration, so whilst in particular cases it can be expensive, it is certainly important to ensure that you are protecting your brand assets as fully as you think you should. Just don’t expect to enjoy the same level of PR that Nestle does with your actions!

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