KitKat decision highlights the need to protect assets early

In the latest court battle between Nestlé and Cadbury, the Court of Appeal has refused to allow Nestlé to trade mark the shape of its four-fingered KitKat bar. Last year Mr Justice Arnold, sitting in the High Court, ruled in favour of Cadbury who had challenged Nestlé’s application; so the decision is probably not unexpected by Nestlé, but will nevertheless be a blow to them and could mean that copycat products become more readily available.

As ever, this is a timely reminder of the need to protect assets from as early a stage as possible. The fact that similar products exist in other markets have probably made it more difficult for Nestlé to prove that the KitKat’s shape is truly distinctive and had they acted before copycat products had been released maybe the outcome would have been different. Having said that, the KitKat could never have been considered distinctive before it became popular - showing how important it is to keep matters under review.

Companies need to consider all elements of their business and decide what intellectual property protection may be beneficial. Protecting the shape of a three dimensional object will be trickier than a more obvious identifier, such as a logo, and so all avenues should be considered.