Confectionery giant loses trademark status over shape of KitKat chocolate

THE SHAPE of Nestlé’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 Nestlé against an earlier ruling that the firm had only provided evidence that the chocolate – manufactured at its York factory – was sufficiently well known in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden and the UK. They were earlier 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 Nestlé 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 Nestlé 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 Intellectual 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 Nestlé and EUIPO.”

Nestlé has not sought such a status for its two-finger bar.

A Nestle spokeswoman said: “We believe that the distinctive shape of our four finger KitKat deserves protection and, following today’s findings, the case will now be sent back to the EUIPO Board of Appeal to examine the evidence that Nestlé has filed.

“We think the evidence proves that the familiar shape of our iconic four finger KitKat is distinctive enough to be registered as an EU trademark.”