The decision comes in spite of an EU ruling in Nestlé’s favour last year which caused the Swiss food giant to state it was, “perplexed and disappointed with this national decision by the UK Intellectual Property Office.”
Nestlé disappointed; Mondelez welcoming
“Kit Kat was launched over 75 years ago and is one of the most iconic shapes of any chocolate bar, recognised around the world.”
“The UK is the birthplace of Kit Kat and we are assessing whether to appeal.”
Mondelez International said, “We welcome this ruling although we have no immediate plans to launch such a product in the UK.”
Mondelez is also appealing the EU decision to the EU General Court in Luxembourg.
IPO goes against OHIM decision
In December 2012, the Board of Appeals for the Office of Harmonization for the Internal Market (OHIM), which registers EU Community Trade Marks, overturned an earlier decision and allowed Nestlé’s EU-wide trademark application for sweets, bakery products, biscuits, cakes and waffles.
Nestlé had previously been told the shape lacked distinctiveness for chocolate, candy, wafers and confectionery.
In the UK, IPO hearing officer Allan James said the OHIM Board of Appeals did not have expert evidence at its disposal as he did. He therefore refused the application, except in relation to cakes and pastries.
Nestlé was also ordered to make a contribution towards Cadbury’s costs.
Nestlé and Mondelez have previously been at loggerheads over the color purple. In this legal battle , Cadbury came up trumps and was granted a UK patent for a particular shade of purple.
Nestlé recently filed a legal complaint against 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 Foods intends to fight the case.