Have a break – have a four-fingered item of generic confectionery
The shape of Nestle’s four-finger Kitkat bar has lost its Euwide protected trademark status after the European Court of Justice (ECJ) dismissed an appeal by the confectionery giant.
Judges sitting in the Luxembourg court dismissed an appeal by Nestle 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. They had earlier been instructed that the chocolate was not well enough known in Belgium, Ireland, Greece and Portugal.
They ruled that the EU Intellectual Property Office (EUIPO) must now reconsider whether the three-dimensional shape of the bar can be retained as an EU trademark.
If Nestle is unable to demonstrate that the Kitkat has acquired distinctive character through use throughout the EU it will not get a trademark.
A General Court ruling in 2016 said that Nestle had to prove a Kit Kat was recognisable in every EU country.
The ECJ found that the General Court was right to annul the European Union Intellec- tual Property Office’s (EUIPO) 2006 decision that “distinctive character had been acquired” without “adjudicating on 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 Nestle and EUIPO.”
Nestle has not sought such a status for its two-finger bar.
Yesterday’s ruling follows a decision by appeal judges in the UK in favour of stripping Kitkat of its Uk-only trademark on the basis that the three-dimensional shape of a chocolate product had “no inherent distinctiveness”.