Friday 27 July 2018 9:06 am

DEBATE: Is attempting to trademark a product’s shape, as Kit Kat tried to do, a good business strategy?

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Is attempting to trademark a product’s shape, as Kit Kat tried to do, a good business strategy?

Elizabeth Finn, managing director of Cowan London, says YES.

We live in an age where copycat products and brands are increasingly easy and cheap to produce. It is therefore vital that brands trademark as many aspects of their brand and product as possible.

We have got used to the two-dimensional being trademarked, whether that’s brand logos, icons, or even colours. And, where brands have distinctive and unique three-dimensional packaging, such as Coke’s iconic glass bottle, these have also been trademarked.

More recently, we have seen sounds being trademarked, like the “bongs” on ITV News at Ten, while Apple has even been able to trademark its store layout.

So, trademarking the shape of a product should be relatively straightforward. Toblerone did it, and yes, Kit Kat has recently failed.

The key lesson here is to make sure that you have something truly unique and differentiated to trademark – and don’t leave it too late. Once the copycats are out there, you will have missed your chance.

Scott Guthrie, a digital strategy consultant​, says NO.

Consumers often associate brand meaning with a product’s shape. Sometimes this works: think of the iconic VW Beetle or the curves of a Coca-Cola bottle. So, firms try to create brand distinctiveness by designing distinctive shapes for their products.

But this strategy can lead to headaches. Both Nestle and Mondelez have had long-running legal fights with each other over brand distinctiveness, such as whether Cadbury can trademark the colour of the chocolate bar’s violet wrapper. The strategy also doesn’t work if your shape – like Kit Kat’s four-fingered bar – is concealed beneath packaging. It’s not distinctive enough to merit a trademark.

Kit Kat began weakening any trademark rights to its shape 50 years ago when it started selling two-finger bars in multipacks in the 1960s. The dilution worsened in the 1990s with the creation of Kit Kat Chunky.


Perhaps a concentration on the brand’s essence rather than the continuing fixation with its shape would reap higher rewards from its customers.

 

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