WIPR survey: AG 'was wrong' in Kit Kat case
An advocate-general (AG) was wrong to recommend that the Court Justice of the European Union (CJEU) should reject Nestlé’s attempt to trademark its four-finger Kit Kat shape, according to a majority of respondents to the latest WIPR survey.
Last week, WIPR asked readers whether they agreed with the AG’s opinion.
In what was our most popular survey to date, 60% of respondents said the AG was wrong. One said the shape has “developed a strong secondary meaning in the form and proportion used by Kit Kat”.
Another stated the four-finger shape is “synonymous” with Kit Kat.
But those who agreed with the AG said the shape itself is not distinctive and that the trademark application should be rejected. One respondent said it is not “distinctive in nature and hence it is just to deny a trademark”.
Rather amusingly, one respondent simplified the issue by asking “why not patent the two-legged human beings or four-legged horses next? It is just a shape”.
On June 11, AG Melchior Wathelet said the four-finger shape is “necessary to obtain a technical effect” and therefore ineligible for trademark protection.
The opinion followed Nestlé’s attempt to register the trademark in 2010 at the UK Intellectual Property Office (IPO). Cadbury opposed the mark in 2011.
The IPO rejected the mark in 2013 and Nestlé appealed against the decision, taking it to the English High Court, which referred the case to the CJEU.
As our survey shows, the opinion has been contentious, but the final word should go to a respondent with a light-hearted take on the issue.
The respondent, who disagreed with the AG, promised to eat his “chocolatecoveredwafersupported hat” if the CJEU doesn’t consider the mark to be distinctive.
Once the CJEU rules on the case, you can be sure that WIPR will try to hold the respondent to their word should they be proven wrong.
This week, WIPR asks: “IBM and Microsoft have helped to launch a database called the Open Register of Patent Ownership to improve the accuracy of patent records worldwide. Do you think such a database is necessary?”
