KitKat has been dealt a blow in their attempts to gain EU trademark protections of the KitKat’s four-finger shape. A European court ruled against Nestle, the makers of KitKat, in saying that the shape of the candy is not prevalent in all 28 members of the EU.
Josh Gerben was quoted by the Associated Press, discussing how shape distinctiveness (and not just function) factors into a trademark application:
“They want to make sure they’re not giving a monopoly to a company for a shape that is needed to make a product,” Gerben says. “For example, a circle for a cracker couldn’t be trademarked.”
When trademarks are granted, Gerben noted it’s likely for use within a specific industry. For instance, a court recently ruled against Coca-Cola’s claim over use of the word “zero” for diet drinks with no calories, such as Coke Zero.
Had Coca-Cola prevailed, Gerben said it would have simply prevented other soda makers from using the word in the same way. Coca-Cola has since rebranded Coke Zero as Coke Zero Sugar.
Article: Lewis, M. “No break for KitKat in Europe as trademark request rejected”. APNews.com. July 24 2018.