Nestlé heads to South Africa’s top court in Kit Kat row

A trademark battle over the shape of the Kit Kat chocolate bar in South Africa has reached the country’s highest court, the Constitutional Court of South Africa.

The court has agreed to hear the case between Nestlé and Iffco, a United Arab Emirates-based food products company, with the decision expected to be the final word on a dispute that has raged for almost two years.

Mulitinational company Nestlé had accused Iffco, which stands for International Foodstuffs Company, of infringing its trademark for the shape of its Kit Kat bar with the Tiffany Break chocolate product.

Iffco’s bar, which comes in purple packaging, is produced in two and four ‘fingers’ of chocolate, in a similar way to the Kit Kat.

Nestlé had argued that because of the Kit Kat’s distinctive nature, consumers would think the Tiffany bar belonged to the multinational. But Iffco claimed the shape was purely functional.

In November last year, South Africa’s Supreme Court of Appeal overturned a decision by the North Gauteng High Court, which had previously ruled that the Tiffany Break bar’s shape did not infringe Nestlé’s trademark.

Judge Andrè Louw, who ruled on the initial case at the North Guateng High Court, said confusion among consumers was unlikely.

“Based on the overall impression given by the marks, I do not believe that there is a likelihood that consumers … would be confused or confused into believing the product is a Nestlé product,” Louw wrote.

“I am satisfied that a customer would not regard the presence of the depiction of the chocolate fingers on the respondent’s packaging as ... a link between the respondent’s product and the owner of the marks,” he added.

The Supreme Court of Appeal’s decision to overturn the ruling prompted Iffco’s petition to the Constitutional Court.

Neither Iffco nor Nestlé responded immediately to a request for comment.