Chocolate war: Kit Kat shape refused trade mark registration
German supermarket chain Aldi successfully opposed Nestlé's application to register the Kit Kat shape as a trade mark. Nestle had sought to register as a trade mark "four [chocolate] bars attached to one another with a thin base". A delegate of the Registrar of Trade Marks found that the application related to the functional shape of the Kit Kat rather than its recognisable trade mark. Nestle argued that the Kit Kat shape distinguished the product from other goods in the marketplace and provided evidence that 77 per cent of consumers associated the generic shape with the Kit Kat product. The delegate to the Registrar noted that there is still a "significant element of the community" who did not connect the shape to Kit Kat. Nestle has lodged a Federal Court appeal.
Written by Kirstin Ferguson, Solicitor
