Kit Kat’s chocolate wafer biscuit is set to become a registered trade mark, after Nestle and Aldi agreed to resolve an appeal from a decision of the Trade Marks Office not register the confectionery’s finger shape as a trade mark.
Aldi had initially given Nestle ‘the big finger’, successfully opposing registration of the shape mark on the basis it was not capable of distinguishing the food giant’s chocolate-coated wafer biscuits. Nestle appealed the decision but the parties asked the Federal Court of Australia to allow Nestle’s appeal so the trade mark could be registered (Societe Des Produits Nestle S.A. v Aldi Stores (A Limited Partnership) [2010] FCA 218).
It will be interesting to see if Nestle enforces its shape trade mark registration, which has a priority date of 9 Febuary 2000, against others using a similar shape trade mark and if so, the outcome of any infringement action.
