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Louboutin gets a better break than Kit Kat

View profile for Tim Field
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In what can often be seen as the complicated world of intellectual property, why did Kit Kat lose their trademark case whilst Louboutin’s red soles won?

Many people will be equally familiar with the trapezoidal snack bar and the striking red soles of a certain brand of high heel.  Crucially Louboutin has protected its trademark as the contour of the shoe upon which the red sole is fixed was not considered a shape. However, in the case of a Kit Kat the distinctive shape is exactly what Nestle were trying to protect, but failed to do so.

When starting a new business, or having invented a new item, protecting your rights can be vitally important to securing your long term success, generating revenue and protection against copycat companies and individuals ripping off your hard work.  As can be seen in the cases mentioned above, it is not always clear what the courts will determine as possible trademark protection.  The result, hours of hard word and money spent on research and development lost to rival business.

Whilst on the face of it the Louboutin and Kit Kat cases may appear very similar, they turned on the issue of shape. Nestle failed in their defence as they were unable to demonstrate that the shape was distinctive and recognised throughout all of the EU member states as a Kit Kat. In comparison Louboutin were successful in their action as the red sole trademark did not relate to a specific shape; the trademark registration simply stated that the contour of the shoe was only used to show the trademark’s positioning.

The two cases highlight both the difficulty in obtaining trademark protection relating to shapes and also the importance of the wording of any trademark application. Given the value to a company of trademark protection it is wise to take expert legal advice and at Birkett Long we are able to assist you in registering trade marks to help protect your brand and future income. I am based in our Colchester office and can be reached on 01206 217366 or tim.field@birkettlong.co.uk.

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