Everyone knows the shape of a KitKat bar–but can Nestle (KitKat’s parent company) legally keep people from replicating it? According to a British judge, the KitKat shape can’t be trademarked–the decision was just handed down earlier this week.

Apparently this has been a long legal saga in Europe, with Nestle bringing attempts to trademark the KitKat shape to both the British High Court and the European Court of Justice. Nestle first tried to trademark the shape back in 2010, in an attempt to keep competitors, particularly Cadbury, from making chocolate bars in similar shapes.

However, Judge Arnold of Britain’s High Court ruled that the shape of KitKat hadn’t “acquired a distinctive character” to the point where it could be trademarked. The big legal question was whether or not someone could look at a KitKat bar and know what it was, even without any distinctive markings or packaging. Judge Arnold pointed out that Nestle had never promoted the shape when marketing the KitKat bar, and the bar’s wrapping obscures the shape. He stated in his ruling that while the shape may be distinctive, it isn’t the only thing that consumers use to identify the candy bar, stating:

In these circumstances it seems likely that consumers rely only on the word mark KitKat and the other word and the pictorial marks used in relation to the goods in order to identify the trade origin of the products. They associate the shape with KitKat (and therefore with Nestlé), but no more than that.

The idea of trademarked a candy bar shape isn’t totally crazy though; some cases have been successful in the past. For example, Toblerone, which does have a distinctive mountain-like look, has been able to trademark its shape.

This case also wasn’t the first time that European candy companies have gone head-to-head over seemingly arbitrary intellectual property claims. In 2013, Nestle and Cadbury tussled in court over Cadbury’s attempt to trademark the shade of purple it uses for its chocolate wrappers. Cadbury wasn’t successful at that attempt, either.

So for now, it seems like the case of the KitKat shape is decided (at least in European courts) but Nestle is promising to appeal the suit. At this point though…”Gimme a break.“

Update: An earlier version of this post used the term “copyright” instead of “trademark.” The language has been updated.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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