KitKat loses EU court appeal for four-finger chocolate bar trade mark

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Nestlé has lost a long-running legal battle to win the European copyright for the four-fingered design of its KitKat chocolate bar.

The Swiss company was battling American confectionary giant Mondelez, owner of Norwegian chocolate bar Kvikk Lunsj, in its bid to own the trade mark for the tearable, four-stick design.

But the European Court of Justice in Luxembourg has ruled against Nestlé, deeming that the shape of the chocolate bar is not distinctive enough to amount to a trade mark.

The decision confirms the ruling made by the UK courts in May 2017, meaning that Nestlé can’t take legal action via the EU if other companies copy the shape.

KitKat trademark caseKitKat is not distinctive enough for a trade mark rules EU court, matching the decision made in UK courts last year

The dispute has been long running in both the UK and European courts.

KitKat originally filed a registration with the European Intellectual Property Office on 21 March 2002. This was appealed by Cadbury Schweppes – a company that was later bought by Mondalez – and a legal battle got underway in 2007.

Nestlé took the battle back to the European courts in February last year and lost. It appealed the decision, but the judge ruled on 25 July that it would be upheld.

 

The case hinged on whether the public relied on the shape of a KitKat alone to identify it, which would confirm its status as a badge of origin.

The court ruled that the shape was not sufficiently distinctive in all EU countries, and a blanket ruling covering all member states was therefore not granted.

Many countries, including Germany, Australia and Canada have granted a trade mark to the distinctive shape, which prevents other confectioners from producing a chocolate-covered wafer in the KitKat’s image.

The first KitKat was produced in 1935 by British manufacturer Nestle. The Norwegian equivalent came to the market in 1937.

As well as Kvikk Lunsj, Mondelez owns a number of popular chocolate bars, including Cadbury Dairy Milk, Milka, Mikado and Cadbury Creme Egg.

The company locked horns with Poundland last year, claiming that the discount store’s Twin Peaks chocolate bar infringed the copyright of Toblerone, another brand in the Mondelez confectionery empire.

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