Nestlé wanted to protect the shape of KitKat’s, but the courts had other ideas. Even though millions do see the breakable bar with the KitKat brand, the company’s attempt to trademark its shape ended in failure.
This is one of the most high-profile examples of a brand relying on acquired distinctiveness and losing.
The Application
Nestlé applied to register the shape of its four-finger chocolate bar as a UK trademark, arguing that it had acquired distinctiveness. The brand had used the shape for decades, spent millions on advertising, and pointed to widespread consumer recognition.
But Cadbury challenged the registration. The case made its way through multiple courts, with the Court of Appeal eventually agreeing with Cadbury.
Why It Failed
While Nestlé proved that people recognised the shape, they could not prove that people saw the shape alone as a sign of origin. That is, as an indicator that the chocolate came from Nestlé.
In simple terms, yes, people knew what a KitKat looked like. But no, they did not see the shape on its own as proof that it was made by Nestlé.
What It Means
This case sets a high bar for shape trademarks based on acquired distinctiveness. You must show that the shape itself, without any branding or logos, is used by consumers to identify the brand.
Interestingly, Nestlé had better luck with other parts of its brand. Its well known slogan “Have a Break… Have a KitKat” is successfully trademarked as a tagline, but when Nestlé tried to register just “Have a Break” on its own, it was rejected for being too generic. Courts held that while the full slogan had acquired distinctiveness through decades of use, the shorter phrase had not become distinctive enough in its own right.
For businesses using unique product designs or slogans, the key lesson is this. Start collecting evidence early. If you want to rely on shape or wording alone, make sure it features heavily and consistently in your advertising, packaging, and marketing. Not just as a backdrop, but as a central brand element.
Thinking about protecting a unique product shape or packaging? Our team can help you guide you on what it qualifies and talk you through the trademark process.
On the flip side Toblerone succeeded with its triangular design in this article, or read more about chocolate branding challenges in our blog on Lindt’s legal win.
We work with businesses at all stages of their trademark journey. Whether you are filing for a UK Trademark for the first time or exploring options after years of trading, we can work with you to help define what makes your brand unique.
Book a free no obligation chat with one of our trademark experts today.
Questions about this
Why did Nestlé fail to trademark the KitKat shape?
Nestlé showed that people recognised the four-finger shape, but could not prove that consumers saw the shape alone as a sign that the chocolate came from Nestlé. Cadbury challenged the application, and after the case moved through several courts, the Court of Appeal agreed with Cadbury. The case sets a high bar for shape trademarks that rely on acquired distinctiveness.
Answered by Jonathan Paton, Founder & CEOWhat can businesses learn from the KitKat shape case?
That recognition alone is not enough. The courts accepted that people knew what a KitKat looked like, but not that they saw the shape on its own, without branding or logos, as identifying Nestlé. If a shape or phrase matters to your brand, it helps to make it a central, consistent feature of your advertising, packaging and marketing rather than a backdrop, and to start collecting evidence of that early.
Answered by Jonathan Paton, Founder & CEOWhy was Have a Break refused when the full KitKat slogan was registered?
Because the shorter phrase had not become distinctive enough in its own right. Nestlé’s full slogan, Have a Break, Have a KitKat, is registered as a tagline after acquiring distinctiveness through decades of use. Have a Break on its own was rejected as too generic. A tagline that reads as ordinary language usually needs strong evidence that the public links it to one business.
Answered by Jonathan Paton, Founder & CEO
