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Three lessons from the KitKat® shape trademark battle

Trademarks can play an important part in branding, protecting your (new) intellectual property and creating a point of differentiation in your market. Following the news that the ‘iconic’ KitKat® four-fingered shape has been denied Europe-wide trademark status, here’s our take on lessons to be learned.

We love a challenge, and they usually don’t come much bigger and better than creating a new brand with a client. And there’s no doubt that trademarks can play an important part in branding, protecting your (new) intellectual property and creating a point of differentiation in your market.

We’re not legal experts, so we won’t attempt to answer the interesting question “When is a trademark not a trademark?”. Instead, following the news that the ‘iconic’ KitKat® four-fingered shape has been denied Europe-wide trademark status here’s our take on the lessons that might be learned from this lengthy court battle.

 Don’t leave it too late

It’s amazing to think that although the KitKat® has been around since 1935, its similarly-configured four-finger competitors have also been on the shelves since 1937… and have grown in number over the years.

So, if you’re thinking about launching a new brand, make trademarking decisions part of the process right from the off – it’s much harder to defend your position in later years.

Coca Cola® trademarked their bottle in 1960 (with logo) and again in 1977 (shape only). You have to wonder if they’d be able to do so as readily if they’d left it another forty or fifty years. After all, despite being instantly recognisable, the format of Lindt’s famous bunny with its gold foil and bell on a red ribbon could not be trademarked in 2013. Yet Toblerone’s characteristic triangular shape – soon to return to its former glory in the UK – is trademarked.

Incidentally, Hershey’s® trademarked their Kiss® in the 1920s. Smart move, as it turns out.

Think global

The KitKat battle has been about trademarking across Europe. The shape trademark is already established in some countries but has been rejected by others (including the UK) as not sufficiently distinctive.

We’ve all seen the gags where brands have ‘unfortunate’ translations in other markets, but there’s more to international branding than simply getting the name right. Globalisation has changed the way businesses and brands are seen, and it’s worth remembering that you may need to stand out in a wider market than you originally thought. Which means looking after your trademarking and ensuring that your brand design is distinctive not just in the UK, but wherever you may be doing business in future. Or indeed, wherever your competitors may be coming from.

 

There is such a thing as being too successful for your own good

Once a brand becomes so popular that it enters the vernacular, it becomes hard work to protect it. We’re all familiar with Hoover and Aspirin. But how about Yo-yo? Escalator? Trampoline? Dry Ice? And Rollerblade? They are all ex-trademarks that have fallen victim to genericide – their integration into the common vocabulary in such a way that they have lost their original intellectual property status in one or more countries. And there are more brands creeping into everyday language every year, risking the same fate.

It takes vigilance and hard work to protect your brand once it reaches everyday language, as companies like Stetson®, Kleenex® and Xerox® know all too well.

 


Here’s a final thought… do you even need a trademark at all? Is it worth the hassle, given the energy and expense that can be involved in creating and protecting it?

We can’t answer that question for you either, but we do know that what matters most is that your brand is yours and yours alone: distinctive, recognisable and relevant to both your business and your target customers.

Here are two great examples of how rebranding can make a remarkable impact on your business, leading to more clients, more sales, and even accolades from peers!

Wilson Browne

TPS (VW Audi Group)

 

For a list of brands impacted by generic use, visit: https://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks

To check a trade mark, visit: https://www.gov.uk/search-for-trademark

 

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