Android KitKat - isn't that trademark infringement?

 Me) So the clever marketing people at Google have decided to call the next Android Operating System KitKat. This after the current version was called Jelly Bean. 

My wife) But isn't KitKat trademarked? I can see Jelly Bean is a type of sweet, not a brand, so anyone can use it and no one can trademark it. But KitKat?

Me) Yes it is, Nestle is an enormous confectionary, food and other products company operating in probably all countries worldwide but for a troubled few. And they have trademarks registered for KitKat, which helped them beat Cadbury's in a recent dispute over the shape.

My Wife) So if they'd wanted to Nestle could stop Google using the name KitKat

Me) Yes if they'd wanted to Nestle probably could on the basis of being such a well known brand, even if they have registered it  as a trademark for confectionary and candies, and not for technology and software. But here is the key point, more than one person can use and register the same trademark as long as it for different goods and services, no chance of confusion, and its not a super well-known brand.

My Wife) Really? How does that work

Me) All trademark registries in all countries (except Canada, they like to be different) have a system of classes which divides all goods between 35 classes and all services between a further 10. So one person can own a trademark in one class, and someone else the identical trademark in another.

My Wife) So if I look on the register that someone has registered the name I want, I should not give up straight away?

Me) Exactly, you need to do thorough trademark searches. There are some complications with classes being related to other classes, but yes if a trademark is registered in a class that does not apply to your business, you could well be able to register it, use it, and build it into a valuable brand.


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