Trademark News & Screw-ups Why you can trademark a Toblerone but not a Kitkat

As much as the article is trying to rationalize the decision (KitKat's shape is hidden by the packaging at the time of purchase, the shape is less distinctive compared to triangular shape of Tobblerones), the fact remains that these decisions (whether or not a brand is truly distinctive) are extremely subjective. I've said before that KitKat's shape is really somewhere in the middle between a generic chocolate bar with grooves (most of them are) and a Tobblerone that has a very recognizable shape. The question is which of the two extremes would KitKat be closer to. And the answer would be different from one person to the next. Which is best demonstrated by the opposite decisions that courts and Trademark Offices of different countries reach in virtually identical circumstances (Loubotin's red soles would be the perfect example).

The video below features Andrei Mincov's commentary of this article.

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Disclaimer: Please note that this post and this video are not and are not intended as legal advice. Your situation may be different from the facts assumed in this post or video. Your reading this post or watching this video does not create a lawyer-client relationship between you and Trademark Factory International Inc., and you should not rely on this post or this video as the only source of information to make important decisions about your intellectual property.