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Did you know: You cannot Trademark a ‘Kitkat’ but a ‘Toblerone’

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Nimisha Gupta
Nimisha Gupta has an unleashed zest for everything creative. Is a budding writer, inspired from coffee beans to pen down, when the world sleeps. It’s not about the destination rather the journey. #Musicbuff #Coffeeholic #ChocoManiac #Trailblazer..

Are Trademark grants biased? Aren’t ‘Kitkat ‘ and ‘Toblerone’ both chocolates? Are the trademarks for a specific colour or shape tough to crack? A lot many such doubts would frolic in your mind.

Alas! Nestle’s attempt to trademark the KitKat shape was smashed.

Preface

In the 19th century, Bass beer emerged as one of the biggest beer companies, which had a ‘Red Triangle’ embossed on its bottles. This vermillion triangle was the only geometrical figure which, the world associated beer.

Bass grabbed the first mover advantage by being the first in line to get the Red Triangle trademarked on 1st January,1876. It is the oldest trademark in the UK, with a monopoly of almost 141 years, so far.

The value of trademarks is judged with its longevity. Trademarks have a limited time span of 20 years, to encourage competition.  However, a monopoly can be achieved by renewing the same after every 5 or 10 years depending upon the respective jurisdiction.

Complexities Of Intellectual Property Laws

Trademarks are usually ‘logos’, ‘name’, ‘colour’, ‘sound’ registered in relation to a specific goods and services. Therefore, it is possible for two businesses in different fields having the same name such as ‘Dove’ should we call it a chocolate or a soap?

To crack the Trademark registration, try to make it distinctive. ‘Kodak’ being an invented name is regarded as the uncontroversial Trademark.

It is trickier to trademark shapes and colours. A series of Trademark fails with an attempt to trademark a shape and a colour specifically with the consumer goods companies, elucidates the complexities of the IP Laws:

  • Lindt failed to trademark its gold foiled bunny chocolate in Germany.
  • Cadbury failed to trademark the shade of purple with respect to Dairy Milk chocolate.
  • Kit-Kat failed to trademark the Four fingered chocolate wafer.

Even after such complexities, companies attempt to apply for trademarks as it provides exclusivity to their brands against all infringing imitators.

What went right: TOBLERONE

Toblerone, a US-based chocolate brand has successfully trademarked its triangular shape.

What convinced the UK court?

The triangular shape of the chocolate was pivotal to its advertising campaign. It’s advertisement emphasised on using triangular honey from triangular bees.

However, post the pound’s Brexit- induced drop, they recently modified the design, to reduce its weight by giving bigger gaps between the triangular shapes of the bar to lower its costs.

Will this modification jeopardise its Trademark?

They chocolatiers argued that the new bar retains its overall length, they have just increased the gaps between the iconic triangles on a specific bar only sold to limited retailers and not to the full range of products.

What went wrong: KITKAT

Nestle attempted to trademark the shape of KitKat; a four-fingered chocolate bar.

The UK court believed that the rectangular bars with breaking grooves were not distinctive enough, you don’t get to see the bars, its inside the wrapper.

Moreover, it was discovered that there existed a similar Norwegian bar called “Quick Lunch” having the similar pattern since 1937.

However, Nestle has been granted trademark registration in other countries of the world like Canada, Germany, France, Australia, and South Africa, etc.

Nestle has its history of patience in trademarking the difficult marks.It took more than 40 long years for it to register the slogan,”Have a Break” as a trademark, which was granted in 2006.
Well, the Four-fingered bar is just the beginning!

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Nimisha Gupta
Nimisha Gupta has an unleashed zest for everything creative. Is a budding writer, inspired from coffee beans to pen down, when the world sleeps. It’s not about the destination rather the journey. #Musicbuff #Coffeeholic #ChocoManiac #Trailblazer..

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