THERE IS NO BREAK FOR KIT KAT
North Gauteng High Court Judge Johan Louw dismissed Nestle’s application for an interdict to stop Iffco from infringing Nestle’s “Have a break … Have a Kit Kat” trade marks or passing off its product as being associated with Nestlé.
He also dismissed Nestlé’s application to expunge Iffco’s “Quanta Break” and “Tiffany Break” trade mark registrations in South Africa.
A counter-application by Iffco to expunge Nestlé’s finger wafer trade marks was similarly dismissed.
Judge Louw said Nestlé had not presented any evidence of deception or confusion between the products.
He said he was satisfied that a customer would not regard the presence of the depictions of the chocolate fingers on Iffco’s packaging as creating an impression of a material link between its product and that of Nestlé.
He said the customer would on opening Iffco’s product also not believe that it emanated from Nestlé or that there was a connection between the Break product and Kit Kat.
“The customer will not see the shape of the product as indicating origin.
“The applicants have not succeeded in proving infringement of their finger wafer trade marks,” he said.
Judge Louw said there could be no doubt that Nestlé’s Kit Kat chocolate wafers were well known.
It has been sold in the UK since 1935 and for more than 50 years in South Africa and was the largest chocolate brand in the world.
He however said he did not believe Iffco’s depictions of chocolate fingers on their packaging and of their chocolate bars would unfairly take advantage of, or be detrimental to Nestlé’s registered Kit Kat marks.
He said Nestlé had not presented any evidence of confusion despite the two products being marketed side-by-side from a considerable period.
He added that the get-ups of the two products were so different that no customer would think there was an association between the products.
The Judge said if Iffco’s use of the word BREAK, which was an ordinary word, was to be interdicted, Nestlé would effectively be given exclusive use of the word BREAK.
This would negate the existing disclaimers that the registration of Nestlé’s marks did not give a right to the exclusive use of the word BREAK separately and apart from the mark