Nestlé cannot catch a break in KitKat trademark case

Matthew Howe

For years Nestlé has attempted to trademark its well known four finger shape for KitKat. By obtaining this trademark it would be able to prevent any other chocolate manufacturer from producing a product with the same or similar design.

In 2006, the Intellectual Property Office (EUIPO) finally granted Nestlé the trademark for its four finger shape. However a decision in 2016 by the European Court of Justice (ECJ) annulled the trademark. Nestlé appealed but in the recent decision by the ECJ the appeal was rejected.

The company responsible for challenging the trademark is the well known competitor of Nestlé, Cadbury. The reasoning behind this challenge being that Cadbury is owned by Mondelez International which produces a chocolate bar famous in Norway named Kvikk Lunsj. This Norwegian chocolate bar is an identical shape to that of a KitKat and was created only two years after the KitKat, in 1935.

In order to successfully be granted a trademark, it must first be shown that the product carries a distinctiveness that allows customers to recognise its origin from any other product. Cadbury argued that Nestlé had failed to establish a distinctive character across every EU country and therefore could not be granted a European-wide trademark.

The ECJ agreed and came to the decision that Nestlé had failed to prove that within countries such as Belgium, Portugal and Greece that the four finger shape had enough distinctive character.

This is not the end for Nestlé's’ trademark battle; they are still able to reapply to the EUIPO for a trademark for the four finger shape. They will simply need to provide evidence this time that the shape has distinctive character across the countries it failed to prove in the first application.

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