The food and drink company Nestlé has lost a UK court appeal to trademark the shape of the four-fingered KitKat bar.

Despite holding trademark registrations in many other countries (e.g. Germany, France, Australia, South Africa, and Canada), the UK court of appeal stuck two fingers up to Nestlé in what is the latest twist in a long-running legal battle with rival Cadbury.

In December 2016, an EU court also dismissed Nestlé’s attempt to trademark the KitKat shape. Nestlé and Cadbury have been battling each other for over a decade, with Nestlé successfully blocking Cadbury’s attempt to trademark the shade of purple used in the packaging of Dairy Milk chocolate.

Joining up the dots, it’s interesting to compare this shape spat with fish fingers, invented by Clarence Birdseye in 1955 and sold for 1s 8d a packet (in old money). The US-born scientist pioneered flash freezing in the 1930s having taken lessons from Canada’s Inuit. He discovered that the fish he caught froze almost instantly in -40°C air temperature and when thawed tasted absolutely fresh.

Fish fingers – which Clarence Birdseye never trademarked – are made by pressing a large mass of fish fillets together, freezing it and then cutting it into slices. Fish fingers first hit the market as “fish sticks” in the USA and were popularised in England by BirdsEye and Young’s of Grimsby in the mid-1950s with the slogan “No bones, no waste, no smell, no fuss”.

Fish fingers were an immediate hit. Six hundred tonnes were sold in the first year and today the figure is closer to 28,000 tonnes. An earlier name – “cod pieces” – was unfortunately rejected, although given that fish don’t have fingers, many a child has innocently asked what part of the fish they are actually eating.

As for Captain Birdseye, he originally wanted to be a stand-up comedian: “I say, I say, I say! Do you know the one about the fish finger that went into a pub? The bartender took one look at him and said, ‘Sorry, we don’t serve food in here’.”



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