The board of appeal of the Community Trade Mark Office ruled that there was sufficient evidence to demonstrate that it was at least likely that the public exclusively associated the shape with Kit Kat.
The ruling went against Cadbury who argued that the trademark, which was originally registered by Nestlé in 2006, was invalid because the shape did not distinguish the product from those of rivals.
It follows a similar case last year, again involving Nestlé and Cadbury. On that occasion, it was Cadbury which won the right to trademark the purple colour of its Dairy Milk packaging.
“There is some irony in this decision given Cadbury was successful in defending a High Court challenge by Nestlé to register its distinctive shade of purple for milk chocolate last year,” said Lee Curtis, a trade mark lawyer at Harrison Goddard Foote.
“These decisions highlight how one can monopolise through trade mark registrations not only conventional trade marks such as words and logos, but more unconventional ones such as colours and the shape of a product or its packaging.
“Any aspect of a brand, product or its packaging can be registered as a trade mark providing it distinguishes your goods or services in the marketplace from those of others.”
Source: The Grocer