Sticking two fingers (or four) up at trade marks

Here at Simplify the Law, we don’t do product placement. So if we choose to indulge in a favourite chocolate snack with a mug of coffee – now that Summer seems to have abandoned us – we would prefer to describe it in general terms only. We may mention that it is habitually enclosed in a red and white wrapper, and commonly comes in a four-fingered slab, but it’s in the interests only of meaningful discussion that we actually mention its name. So…

Nestlé’s bid to register as a trademark the four-fingered Kit Kat (no, this is not a modern mutation of a domestic pet) isn’t going well. It isn’t dead in the water, but the Advocate General of the European Court of Justice (ECJ) has given it as his opinion that the application is not well made.

It’s difficult to get your head around – except in the most literal sense – because it hangs on various points, such as:

  • whether the shape of the chocolate bar, without label or logo, would be sufficient to make it recognisable as a Kit Kat; and
  • whether the grooves between the fingers are a design feature or are necessary from a manufacturing point of view, or for the functionality of the confection (i.e. to help it break cleanly).

We don’t know whether the application extends to the two-fingered Kit Kat, or whether that would make a difference.

What we do know is that at different times over the years we have seen supermarkets’ own-brand two-fingered snacks which, when stripped bare, have been anatomically equivalent. Similar enough, anyway, to make us think that it’s a Kit Kat by any other name. (Admittedly, this isn’t the case with Kit Kat recently, but there are plenty of supermarket equivalents to established sweet brands available today to go with that coffee.)

It’s tempting to mutter “life’s too short”, wondering why a multinational is spending its legal budget talking about the grooves between the fingers on a chocolate bar, but there’s a genuine issue – an issue which may not mean millions to the average business, but could mean much more as a proportion of its value.

For the global giants, the promotion of a brand is one of its best protections. For that reason alone, no one imagines that the expected ruling of the ECJ against the registrability of the four-fingered Kit Kat will sound the death knell for Nestlé. But what if you scale it down to the size of a much smaller business, which doesn’t have the massive budget to promote its brands? Having the court effectively declare open season on their products could be devastating.

But that isn’t what’s really happening here. It looks, rather, as if the ECJ is just trying to prevent a large player from claiming protection for an aspect of its product which shouldn’t be protected. Small business’s brands and logos aren’t really at risk, as long as they’re properly registered and defined.

Which is easily done, as you can discover here:

Criteria for registering trade marks

So there you have it. When the ECJ delivers its expected final ruling, things which look like, but aren’t, Kit Kats may start flying from the shelves. However, if you see anything that looks like, but isn’t, a Toblerone, report it immediately. Triangles are apparently a whole different matter.

(featured image: ztudiototo,

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