Two fingers to KitKat

An update on the long running dispute between Nestle and the owner of Cadbury.

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We reported in an earlier newsletter about the long running dispute between Nestle, the makers of KitKat and the owner of Cadbury which makes a chocolate bar of a similar shape to KitKat.

The matter has gone to the European Court of Justice and it has been held that the shape of the KitKat bar is not sufficiently distinct to afford it trademark protection.  The matter is not over as it will now be considered by a further European body.

The issue has come to the fore to some extent with the advent of budget supermarkets which produce ‘own brand alternatives to big brands.

The case has rumbled on for a number years and highlights the importance to businesses of trademark and copyright protection.

The Government website reminds us that:

Having the right type of intellectual property protection helps you to stop people stealing or copying:

  • the names of your products or brands
  • your inventions
  • the design or look of your products
  • things you write, make or produce

Copyright, patents, designs and trade marks are all types of intellectual property protection. You get some types of protection automatically; others you have to apply for.

What counts as intellectual property

Intellectual property is something unique that you physically create. An idea alone is not intellectual property. For example, an idea for a book doesn’t count, but the words you’ve written do.

Owning intellectual property

You own intellectual property if you:

  • created it (and it meets the requirements for copyright, a patent or a design)
  • bought intellectual property rights from the creator or a previous owner
  • have a brand that could be a trade mark, e.g. a well-known product name

Intellectual property can:

  • have more than one owner
  • belong to people or businesses
  • be sold or transferred

Intellectual property if you’re self-employed

If you’re self-employed, you usually own the intellectual property even if your work was commissioned by someone else - unless your contract with them gives them the rights.

Protecting the products and ideas is an important part of any business and as the Kit Kat case proves, it can be difficult area to get right.

To discuss this or any business related issue, contact us.

Members: Simon Shaw, Elizabeth Rimell and Janice Leyland.
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