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Does Kit Kat’s Shape Deserve a Trademark? E.U. Adds a Hurdle
- SargeZT 8y agoI'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.
- FPGAhacker 8y ago"I think it's insane that you can trademark a shape." What exactly do you think a trademark is?
- jopsen 8y agoIsn't trademarks used to uniquely identify products as originating from as specific vendor. Hence, society prevents others from using your trademark inorder to protect customers from buying a counterfeit product while believing they're buying a legitimate product. IMO, of the product is clearly labelled as something other than "KitKat", then customers are protected, no futher trademarks are needed. As KitKats are usually traded in a labelled wrapping, I don't see the big issue. I doubts shops will start selling unwrapped KitKats, inorder to mix in counterfeit products.
- krapht 8y agoDo you feel the same way about Toblerone?
- TeMPOraL 8y agoThe funny-shaped chocolate thing? Sure, the same. Trademarking a shape is still ridiculous.
- WilliamEdward 8y agoYou actually kind of proved that trademarking shapes is important, by recognising "the funny-shaped chocolate". In your mind, you can identify what toblerone is based on shape alone. if another confectioner made an identically-shaped chocolate, you could buy it thinking it was toblerone and more than likely it would be worse than toblerone and ruin their reputation.
- TeMPOraL 8y agoAs I mention here[0], you generally don't buy FMCG products without packaging. And packaging (which, by the way, usually conceals the special shape of the product) clearly tells me what I'm buying, without any chance for confusion. -- [0] - https://news.ycombinator.com/item?id=17632652 https://news.ycombinator.com/item?id=17632652
- WilliamEdward 8y agoJust because you rarely encounter unpackaged goods doesn't mean you shouldn't account for even the small amount of cases where you do. Someone could have a bowl full of kitkat-shaped chocolates in a bowl at a party which you could confuse for the real deal.
- Retric 8y agoKit Kat prints their name on the bars so you really can’t. They even use Kit Kat for other shapes meaning the Kit Kat brand is devorced from that shape. PS: Have you ever seen people remove the bars at a party? That’s unsanitary.
- balfirevic 8y ago> doesn't mean you shouldn't account for even the small amount of cases where you do Yes, it absolutely means that. We're not talking about some kind of inalienable right. Trademarking such a broad thing as candy shape is heavy-handed approach which should be out of question unless there is a chance for really massive amount of customer confusion (and even then, it's arguable). BTW, in my country you can buy a chocolate that shares the shape with Toblerone. It has entirely different name and packaging and no one is ever confused.
- WilliamEdward 8y agoIt'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 8y agoIt _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.
- NeedMoreTea 8y agoNo, 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.
- c3534l 8y agoI'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 8y agoSometimes 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.
- noja 8y agoA 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 8y agoQuoting 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.
- hyperman1 8y agoIn Belgium, the shape is associated much more with the Leo than with the KitKat. Either the shape has already been generified long ago or KitKat should loose this trademark for Leo in this country.
- dagw 8y agoKit Kat actually 'beat' Kvikk Lunsj to market by a couple of years. No idea if Kvikk Lunsj was inspired by KitKat or if they came up with the shape independently.
- supermatt 8y agoAs 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 :(
- devit 8y agoThere 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 8y agoIn 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 8y agoBut it seems USA has patents used for that purpose.
- maxerickson 8y agoThe EU has patents. In the US, design patents also can't cover functional elements.
- jazoom 8y agoI think you missed my point, which is readily understood by a quick scan of this website: https://www.eff.org/issues/stupid-patent-month https://www.eff.org/issues/stupid-patent-month
- YokoZar 8y agoYes, but patents expire. A patent on the KitKat would have expired long ago.
- jazoom 8y agoSo do trademarks.
- conquistadog 8y agoLet'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 8y agoSince 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.
- nottorp 8y agoI 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?
- severine 8y agoSee also, three stripes: https://www.nytimes.com/2018/03/01/business/adidas-three-stripes-trademark.html https://www.nytimes.com/2018/03/01/business/adidas-three-str... https://www.bloomberg.com/news/articles/2017-03-15/adidas-trademark-war-means-three-stripes-and-you-re-out https://www.bloomberg.com/news/articles/2017-03-15/adidas-tr... http://www.maw-law.com/fashion-law/adidas-files-trademark-infringement-suit-against-marc-jacobs-over-stripes/ http://www.maw-law.com/fashion-law/adidas-files-trademark-in... http://www.klemchuk.com/adidas-loses-famous-trademark-registration-european-union/ http://www.klemchuk.com/adidas-loses-famous-trademark-regist...
- zackkatz 8y agoI’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 8y agoPlenty 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.
- WillyF 8y agoOne 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 8y agoThere 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.