Stephen Vines

The View | As Kit Kat, Starbucks and Posh Spice rulings show, intellectual property is big but bittersweet business

Stephen Vines says as the importance of trademark protection to the global trade agenda grows, Hong Kong’s rule of law advantage over mainland China is apparent

Reading Time:3 minutes

Why you can trust SCMP

Kit Kat chocolate wafer bars on sale in London on July 25. The European Court of Justice dismissed an appeal by Nestlé to register the shape of its four-finger Kit Kat as its trademark. Photo: EPA-EFE

Stephen Vines

Published: 12:00pm, 1 Aug 2018Updated: 10:34pm, 1 Aug 2018

What is the difference between Nestlé’s Kit Kat and the Toblerone bar manufactured by Mondelez?

Existential questions of taste, texture and maybe even cocoa content can obviously come into play when answering this question. But considerations of this kind are for chocolate aficionados. Here on the business pages, perhaps lamentably, less lyrical matters must be considered.

The reason being that the European Court of Justice has recently decided that there will be no European Union-wide trademark protection for what was described in court documents as “four trapezoidal bars aligned on a rectangular base”, aka Kit Kat.

Unlike Nestlé, Mondelez had managed to trademark its “zigzag prism”-shaped Toblerone bar. Moreover, as the owner of the Leo and Kvikk Lunsj confectionery brands, offering chocolate bars that are similar in appearance to Kit Kat, Mondelez was happy to see Nestlé falter in its long-running battle for exclusive rights to the Kit Kat shape.

The court ruling is a landmark in Nestlé’s 16-year battle over Kit Kat but it is unlikely to be the end of the road as makers of branded products take trademark matters very seriously. After all, vast sums of money are at stake.