Bad break for Kit Kat

At Simplify the Law, we hate to say We told you so.

(No, of course we don’t. Who does? Ahem.)

But … We told you so. Right here.

The Kit Kat that didn’t get the Kream

The Kit Kat case came to a climax last week, with the ruling by the European Court of Justice that the four-fingered Kit Kat could not, by shape alone, be registered by Nestlé as a trade mark. It’s not quite over yet, though – the High Court could, when the case returns to it, still rule in Nestlé’s favour.

ECJ trade mark ruling: isn’t it final?

No, not really.

(This is the legal procedure bit. We think it’s fairly interesting, and we promise to live up to our name in explaining it.)

Often, a case in the UK courts will raise a question of European law. That includes the interpretation of any UK law that is based on European law, so that (in theory, anyway) the law is understood and applied consistently across Europe.

So when this sort of question arises (which is fairly regularly, especially when it comes to trade marks and other IP cases), and the answer isn’t clear, the UK court can effectively stop the proceedings, and refer the question of law to the European Court. Or, to give it its full title – The Court of Justice of the European Union, a.k.a. the European Court of Justice, a.k.a. the ECJ.

The ECJ then gives its ruling on the point of law, in the form of an answer to the question put by the national court, and the UK proceedings can then pick up where they left off. And if the only thing on which the outcome of the case depended is the point of law, then that (the UK proceedings picking up where they left off) is really just a formality.

That’s pretty much it for the legal procedure bit (we’re sure that wasn’t a sigh of relief we just heard). So – back to the story.

What could happen now?

Well, there’s the merest of wrinkles in the ECJ ruling that means it isn’t absolutely decisive of the question. The court stated that to register the trade mark, Nestlé would have to prove that the denuded Kit Kat was distinctly recognisable as originating from them, without reference to any other trademark that might be present. Nestlé could yet do that, but they’ll find it hard to prove, particularly because – as regular eaters will know – the Kit Kat logo is imprinted on the delicious chocolatey coating. So it’ll be a little while yet before Cadbury can be certain that the case they made against Nestlé’s registration has been successful.

Because that’s how it all started. It may be a hot topic now, but it has grown out of great rivalry between Nestlé and Cadbury in the last decade or so. It’s been a marathon battle in which each has tried – with some success – to prevent the other from claiming something fairly featureless as a protectable feature: a purple chocolate wrapper in one case; the four fingered feast in the other.

What does this mean for you?

Well, unless you’re an entrepreneurial would-be chocolatier, suddenly inspired to put four-fingered crispy chocolate bars into mass production, not all that much. The high-stakes nature of this contest brought it down to some highly technical arguments. None of which actually changes the law a great deal, if at all.

Or to put it another way, keep on doing what you’re doing.

Find out more about registering trade marks

Unless it’s unlawful: in which case, stop it at once.

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