World of IP Round Up: July 2018 | Kit Kats and Londoners
World of IP Round Up
Nestlé’s Kit Kat Shape Mark Registration Breaks Under the Pressure of CJEU Review
There are few trade marks more infamous than the Kit Kat shape mark. This month, after court battles over the past 11 years – the CJEU confirmed it’s earlier opinion that the shape of KitKat had not been proven to have acquired enough distinctiveness across the entirety of the EU to garner an EUTM. (Though it was granted that there was not a requirement to submit evidence for each and every EU member state).
This result has a range of significant implications for non-conventional trade marks which will be explored further in a forthcoming piece from Lakmal Walawage.
Interestingly, enough Mondelez’s assertion that Kit Kat as a shape had not acquired distinctive character in any state of the EU was not proven. Instead it was that a lack of sufficient evidence provided for the entirety of the geographic scope that would be covered by an EUTM, that led to judgment.
This suggests that Nestlé may return in the future with a further consolidated attempt to register the mark.
Coca-Cola win Energy Drink Colour Mark Case in Australia after Frucor Beverages Registration Mistake
In a decision this month in Australia, Coca-Cola successfully opposed Fucor Beverages’ green colour mark – on the basis that 6 years prior when it was registered, Frucor had attached the incorrect colour swatch.
In addition to this, the Australian court found that the product itself being green, that the colour mark harboured descriptive qualities and as such could not act as a distinctive sign.
Nike Lose legal battle of “LDNR” campaign
Nike have lost a legal battle against premium active-wear label LNDR who successfully opposed NIKE’s “Nothing beats a Londoner” campaign.
The vibrant campaign, including such luminaries as Harry Kane and Skepta, was pulled upon the receipt of LNDR’s complaint.
Changes to UK Trade Mark Registration on the Cards
Whilst Brexit is set to split the judiciary of the UK from the EU in due course – in other quarters, such as IP, further harmonisation has been confirmed.
One area in particular where this has been noted this month are UK The Trade Marks Regulations 2018 which implement the EU’s Trade Mark Directive of 2015 – which will come into force in January 2019.
This will extend the prior limits of what can be registered as trade marks – to those that cannot be represented graphically – amongst a host of other changes.
World of IP Round Up: The Best of the Rest
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World of IP Round Up: July 2018 | Kit Kats and Londoners was written by Dr. Martin Douglas Hendry