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Chocolate Wars highlight the importance of brand protection

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You may not have realised but a war is going on and the battleground is the chocolate stands in your local shop.

Nestle and Cadbury have been engaged in a trademark registration law over the shape of the KitKat for over 5 years and, in the latest twist in the saga, it has emerged that Nestle plan to appeal against the High Court decision not to allow the registration of the KitKat shape as a trademark.

It was Cadbury who raised an objection to the registration, saying that the shape was not distinctive enough to be instantly recognisable to the consumer as a KitKat – and the Court agreed.

Registration of a trademark is a powerful business protection tool. It enables you to take legal action against anyone who uses your brand, anywhere where you hold the trademark, without your permission. It can elevate a brand’s status in the eyes of the consumer and it can help future-proof your business.

However, there are rules about what can and cannot be registered as a trademark – the most important being that it must be distinctive and it can not already be registered.

It really is a case of he who goes first, wins. If you are looking to sell or franchise your business at any time in the future, you should be considering your branding and whether it can be trademarked. I have known sales fall through because the business was using a trademark too close to a registered trademark of a similar business and the buyer was not prepared to take the risk that the holder of the registered business might take enforcement action.

So, if you think your brand is worth protecting then think about trademark registration today – tomorrow might be too late. Contact the Commercial team for advice.