Kit Kat’s cruel break in trademark ruling

THE European Court of Justice (ECJ) has told Nestlé that cut-price rivals may copy the iconic design of its four-finger Kit Kat.

The decision marks the end of an 11-year-long fight by the company to protect the chocolate wafer bar with an Eu-wide protected trademark status.

Judges sitting in the Luxembourg court dismissed a final appeal by Nestlé, made against an earlier ruling that the company had only provided evidence that the chocolate was sufficiently well known in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden and the UK.

It had earlier been told that the snack was not sufficiently well known in Belgium, Ireland, Greece and Portugal after a General Court ruling in 2016 said that Nestlé had to prove a Kit Kat was recognisable in every EU country.

The ECJ found that the court was right to annul the European Union Intellectual Property Office’s (EUIPO) 2006 decision that “distinctive character had been acquired”, on the basis that it did not judge “whether that mark had acquired such distinctive character in Belgium, Ireland, Greece and Portugal”.

It said: “On the basis of those considerations, the Court dismisses the appeals of Nestlé and EUIPO.”

It follows a decision by appeal judges in the UK that ruled in favour of stripping Kit Kat of its Uk-only trademark, on the basis that the three-dimensional shape of a chocolate product did not have any “inherent distinctiveness”.

The UK appeal court heard that Nestlé had spent between £3 million and £11million a year advertising and promoting Kit Kats between 1996 and 2007.

In a separate case, Toblerone, which is owned by Mondelez, has successfully trademarked its “zigzag prism” shape after other retailers tried to copy it.