No, not at all, this is just Nestle (and Mondelez) getting greedy (again).
As long as I can remember Rowntree's Kit Kat existing, there have been supermarket and other brands producing similar style and shaped product. Rowntrees kept their sales by being the clearly superior product. Then Nestles bought them and started ruining it.
Nestle and Mondelez have cheapened and worsened their products since respective takeovers yet now want to preserve their dominance by regulation.
Can't agree more. The quality of big brand chocolate is often worse or no better than the cheap copy. I'd go so far as to extend this to a lot of brands other than chocolate - footwear especially.
Let's consider the social contracts that intellectual property protections exist to fulfill in the first place.
For trademarks, for me at least, that seems to center on preventing various harms resulting from consumer confusion, deliberate or otherwise. Indeed, merely "protecting established revenue streams" is explicitly not a reason I'd endorse.
In that context, I'm not sure the consumer is meaningfully confused or harmed by any possible (otherwise legal) use of the trapezoidal four-finger shape by a non-KitKat product. So I'd be inclined to say "no" to trademark protection for it.
Contrary opinions invited, particularly consumer harms I might be overlooking.
Since you rarely encounter FMCG products in unpacked form - for reasons including health&safety, when it comes to food - I don't see how a trademark for the chocolate bar itself is warranted. The packaging is clear enough for me not to confuse it.
It's a perfect example of hacking without a computer. There is a whole series of these videos trying to recreate mass produced junk food in a test kitchen, and it's incredible how difficult it can be for even a very experienced chef. It makes you wonder how these products were ever created.
There used to be a rule in chocolate bar design -- always have at least one secret step which is hard to reproduce. Those trade secrets were how you stopped people producing clones of your product. Nowadays you can try for a trademark instead.
I'm split on this. I think that the standard that you have to prove that it's totally ubiquitous across all member states is ludicrous, but at the same time I think it's insane that you can trademark a shape.
It's not insane, the point of trademarking shapes is so that customers can't look at something in a glance and confuse it for something else. In the case of kitkat, they simply couldn't prove in court that customers would recognise the shape so it didn't get a trademark.
Isn't trademarks used to uniquely identify products as originating from as specific vendor.
Hence, society prevents others from using your trademark inorder to protect customers from buying a counterfeit product while believing they're buying a legitimate product.
IMO, of the product is clearly labelled as something other than "KitKat", then customers are protected, no futher trademarks are needed.
As KitKats are usually traded in a labelled wrapping, I don't see the big issue. I doubts shops will start selling unwrapped KitKats, inorder to mix in counterfeit products.
You actually kind of proved that trademarking shapes is important, by recognising "the funny-shaped chocolate". In your mind, you can identify what toblerone is based on shape alone. if another confectioner made an identically-shaped chocolate, you could buy it thinking it was toblerone and more than likely it would be worse than toblerone and ruin their reputation.
As I mention here[0], you generally don't buy FMCG products without packaging. And packaging (which, by the way, usually conceals the special shape of the product) clearly tells me what I'm buying, without any chance for confusion.
Just because you rarely encounter unpackaged goods doesn't mean you shouldn't account for even the small amount of cases where you do. Someone could have a bowl full of kitkat-shaped chocolates in a bowl at a party which you could confuse for the real deal.
> doesn't mean you shouldn't account for even the small amount of cases where you do
Yes, it absolutely means that. We're not talking about some kind of inalienable right. Trademarking such a broad thing as candy shape is heavy-handed approach which should be out of question unless there is a chance for really massive amount of customer confusion (and even then, it's arguable).
BTW, in my country you can buy a chocolate that shares the shape with Toblerone. It has entirely different name and packaging and no one is ever confused.
I'm never happy about trademarking a single, generic thing like that. If someone comes along with the same shape, calls it a Pit-Pat Bar and contains kinda similar ingredients, sure. But I think that if you're going to trademark something narrowly defined, a specific shape or color, then either it needs to be so unique and pointless that no one would ever copy that thing on their own, or it should be coupled with other unique things that clearly identify a single specific brand.
This topic comes up a lot, though. It seems to be that most people in our little bubble think that intellectual property law is too vague, expansive, arbitrary, and violates common sense. At least the supreme court dealt a little bit of a blow to patent trolls, but the whole system needs to be reformed.
As a trademark, surely it would need to be used to identify the product as traded. aFAIK kitkat has always been sold in opaque packaging that doesn’t even hint at its shape. Just more IP greed :(
There are only 3 possible simple designs for separable chocolate bars (trapezoidal, rounded and rectangles with a gap), so allowing to trademark any of them would be bad.
A unique shape in connection with a specific product category is fine, but Kit Kat was not the first chocolate bar with this shape (Norway was). So they shouldn't get the trademark.
In Belgium, the shape is associated much more with the Leo than with the KitKat. Either the shape has already been generified long ago or KitKat should loose this trademark for Leo in this country.
Kit Kat actually 'beat' Kvikk Lunsj to market by a couple of years. No idea if Kvikk Lunsj was inspired by KitKat or if they came up with the shape independently.
I’m surprised more people are not in the affirmative on this.
If I saw a chocolate product that had the same shape, I would immediately recognize it as Kit Kat. It is distinctive, worth protecting, and I don’t think Nestle is being overly greedy here.
As long as I can remember Rowntree's Kit Kat existing, there have been supermarket and other brands producing similar style and shaped product. Rowntrees kept their sales by being the clearly superior product. Then Nestles bought them and started ruining it.
Nestle and Mondelez have cheapened and worsened their products since respective takeovers yet now want to preserve their dominance by regulation.