KitKat’s four fingers 4th time unlucky

london — The four-finger KitKat isn’t a distinctive enough shape to warrant a trademark, UK Court of Appeal judges said on Wednesday, marking a fourth unsuccessful attempt by owner Nestle to protect the famous chocolate bar.

The decision follows two British rulings and a European judgment in the decade-long efforts to trademark the famous candy bar. Mondelez International’s unit Cadbury UK Ltd had challenged the latest appeal. The EU General Court ruled in December that chocolate didn’t meet the bar required to deserve a European Union-wide trademark protection.

Three appeal judges agreed with lower courts that the evidence didn’t go “as far as to show that the consumer would perceive the bars in the basket as originating from Nestle and not from others,” they said in the ruling. “The distinction may be highly technical, but it is important, because of the nature of the trademark, which gives the trader a monopoly for all time.”

The KitKat was first sold in the UK in 1935 by Rowntree & Co, with the shape changing very little since then. Nestle, the world’s biggest food company, bought Rowntree in 1998 and owns the trademark to the bar shape in the rest of Europe.

Nestle said it was disappointed and was considering its next move. “This judgment does not mean that our four finger-shape is now free for use in the UK or elsewhere,” the company said in an emailed statement. — Bloomberg