
Does Kit Kat’s Shape Deserve a Trademark? E.U. Adds a Hurdle - danso
https://www.nytimes.com/2018/07/25/world/europe/kit-kat-nestle-trademark.html
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NeedMoreTea
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.

~~~
dazc
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.

~~~
NicoJuicy
Mostly, the copy cats and the original are the same ( company)

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conquistadog
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.

~~~
TeMPOraL
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.

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WillyF
One of my favorite cooking videos is "Pastry Chef Attempts to Make Gourmet Kit
Kats" \-
[https://www.youtube.com/watch?v=4nqJiBRNQuw](https://www.youtube.com/watch?v=4nqJiBRNQuw)

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.

~~~
CJefferson
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.

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severine
See also, three stripes:

[https://www.nytimes.com/2018/03/01/business/adidas-three-
str...](https://www.nytimes.com/2018/03/01/business/adidas-three-stripes-
trademark.html)

[https://www.bloomberg.com/news/articles/2017-03-15/adidas-
tr...](https://www.bloomberg.com/news/articles/2017-03-15/adidas-trademark-
war-means-three-stripes-and-you-re-out)

[http://www.maw-law.com/fashion-law/adidas-files-trademark-
in...](http://www.maw-law.com/fashion-law/adidas-files-trademark-infringement-
suit-against-marc-jacobs-over-stripes/)

[http://www.klemchuk.com/adidas-loses-famous-trademark-
regist...](http://www.klemchuk.com/adidas-loses-famous-trademark-registration-
european-union/)

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SargeZT
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.

~~~
WilliamEdward
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.

~~~
emilfihlman
It _is_ insane since it's a general shape.

Should google be given the trademark for a search engine because almost
everyone says "google it" (and yes, that is what you are arguing)?

The answer is no.

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c3534l
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.

~~~
jfim
Sometimes companies do build their identities based on color. For example, UPS
brown, Fluke yellow, or Louboutin red.

While it seems silly, they're distinct cues that indicate a specific brand,
and having another company use them would cause customer confusion.

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nottorp
I don't remember ever eating a Kit Kat thingy, but from a look at the photo in
the article, I don't understand what's so unique about the shape.

Also, how the hell are you supposed to recognize it when the shape is hidden
by the packaging?

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supermatt
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 :(

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devit
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.

~~~
YokoZar
In American law Trademarks cannot be "functional" \-- you can't trademark the
fact that your wheels are round, since wheels have to be round.

In Europe their priorities are...different.

~~~
jazoom
But it seems USA has patents used for that purpose.

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YokoZar
Yes, but patents expire. A patent on the KitKat would have expired long ago.

~~~
jazoom
So do trademarks.

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noja
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.

~~~
eesmith
Quoting [https://www.bbc.co.uk/news/world-
europe-44939819](https://www.bbc.co.uk/news/world-europe-44939819) :

> The Norwegian bar has been made since 1937, a mere two years after Kit Kat -
> originally called Rowntree's chocolate crisp - hit the market in 1935.

~~~
noja
Hit which market? The Norwegian market?

~~~
eesmith
The market here means "anywhere in the world", which is aligned with the
earlier comment "the first chocolate bar with this shape."

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zackkatz
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.

~~~
Retric
Plenty of other chocolates have used that shape for decades.

It’s a functional not a pure asthetic choice putting it outside the realm of
trademarks.

