A timely reminder to protect your designs

As a food business you would be wise to invest in protecting your key designs – particularly after the courts rejected a plea by Kit Kat to trademark their legendary four-fingered shape.

The well reported case involved Cadbury, who challenged an application by Kit Kat owners, Nestle, to protect the four fingered design in order to prevent copycat products. The issue has been ongoing since 2014, however, Mr Justice Arnold, sitting in the High Court, finally ruled in favour of Cadbury on Wednesday, 27 January 2016. Nestle had argued that even without its red and white packaging or the word KitKat embossed on the chocolate, the shape of the bar should be regarded as distinct.

I t is understood Nestle now plan to appeal but, in light the ruling, it is a timely reminder of the need for companies to protect their assets at as an early a stage as possible.

While this decision will be incredibly frustrating for Nestle, given the size of the company, it may not be the end of the world. However, for smaller companies a decision like this could be a huge blow.

It demonstrates just how vital it is to ensure all elements of a company’s intellectual property are protected so far as possible. Protecting the shape of a three dimensional object can sometimes be much trickier than protecting a more obvious facet of a product's identity, such as a logo.

A business will often have more difficulty getting a trademark granted in respect of a three dimensional object, perhaps because their features are often seen as technical function rather than distinctive traits that ought to be protected.

I n addition, the courts have repeatedly been reluctant to grant one party protection at the risk of excluding others from the market. There will always be a balancing act between protecting new, inventive and distinct models and granting one company a monopoly over the market.

Nestle will now be in the position of ensuring that other elements of their products are protected in other ways, to try to limit the level of copycat products that can be produced.

It sends a message to all food producers to invest in brand protection as in a competitive world there is always someone looking for opportunities.