KitKat foiled again in bid to trademark four-fingered bar

Andrei Mincov's commentary on the original article
Protecting the shape of a product is a much more difficult task than protecting more traditional trademarks like names, logos, and taglines. The problem is that the line between functionality and distinctiveness gets blurry. Most chocolates have some way to split the whole bar into smaller pieces. At which point does the shape of the divider becomes a brand? KitKat is literally in the middle between Tobblerone and any noname chocolate—both in terms of the depth of the grooves and in terms of trademarkability. No wonder Nestle's lawyers are considering appealing the case further: it can go either way. And the potential upside of securing the monopoly over the shape of their bars is massive.
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