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'Don't be like Kit Kat', law firm warns SMEs

01 February 2016

A law firm has warned smaller food businesses to protect their intellectual property early on, after courts rejected a plea by Kit Kat to trademark their legendary four-fingered shape.

Nestle had attempted to protect the distinctive four-fingered Kit Kat design in order to prevent copycat products. 

However, that was challenged by Cadbury, and the two have been locked in a legal battle since 2014. Last week, a court finally ruled in favour of Cadbury.

“While this decision will be incredibly frustrating for Nestle, given the size of the company it may not be the end of the world,” said Lizzie Naylor, solicitor from Roythornes’ food and drink team.

“However, for smaller companies a decision like this could be a huge blow. 

“It therefore demonstrates just how vital it is to ensure all elements of a company’s intellectual property are protected so far as possible.”

Ms Naylor said protecting the shape of a three dimensional object can sometimes be much trickier than protecting a more obvious facet of a products’ identity, such as a logo.
She added: “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.   

“Also, 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.”

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