Nestlé has lodged an appeal to overturn a South African high court decision that found IFFCO’s Break brand did not infringe the Kit Kat trademark.
The North Gauteng High Court ruled on 28 November 2013 that United Arab Emirates firm IFFCO was not passing off its Tiffany Break brand in contravention of Nestlé’s trademarks on the 2-finger and 4-finger wafer. Nestlé has now appealed the case to South Africa’s Supreme Court of Appeal.
Nestlé: ‘Virtually identical finger shapes’
Ravi Pillay, spokesperson for Nestlé South Africa, told ConfectioneryNews that the first instance court had accepted that Kit Kat’s finger shape was well known as a fully valid trademark, but had failed to uphold the trademark rights.
“Accordingly, Nestlé South Africa’s position in the appeal is that the Court should have found that it was clear that the use of virtually identical finger shapes for IFFCO’s directly competing products, in the course of trade, amounted to both traditional trade mark infringement and also trade mark dilution.”
IFFCO in South Africa
Nestlé hopes to prohibit IFFCO from distributing two and four-finger chocolate shapes in South Africa. The Swiss firm also argues that the Break brand sounds similar to its trademarked slogans “Have a break…Have a Kit Kat” and “Take a Break.”
IFFCO’s South African subsidiary was established in 2010. The UAE firm sells chocolate products under the Break brand in the country including Quanta Break and Tiffany Break in retailers such as Shoprite-Checkers. IFFCO has been contacted for comment.
A court date for the appeal has yet to be set.
Nestlé’s Kit Kat tangles
Nestlé is currently engaged in another trademark dispute with Petra Foods in Singapore, alleging that Petra's ‘Take It’ brand infringes Nestlé's Singaporean trademark on the Kit Kat four-finger and two-finger shapes . Petra denies the claims.
In July, the UK Intellectual Property Office (IPO) rejected Nestlé’s application to trademark the four-finger Kit-Kat shape after opposition from Mondelez International-owned Cadbury.
The decision came in spite of an EU ruling in Nestlé’s favor last year.