Nestle’s popular KitKat chocolate bar will lose its EU-wide protected trade mark status following a decision made by the European Court of Justice last week.
In recent days, Nestle has appeared before the Court in a bid to overturn an earlier ruling which came about following a long legal battle with UK rival Cadbury.
Initially, Nestle applied for EU trade mark protection for the “three-dimensional shape” of its four-fingered KitKat bar to the EU Intellectual Property Office in 2002 – and its application was granted in 2006, The Telegraph reports.
But since then, the trade mark has been challenged repeatedly by US company Mondelez, the owner of Birmingham-based Cadbury.
A previous EU ruling found that the KitKat’s shape presented “no inherent distinctiveness,” and Nestle’s attempts to trade mark the shape in the UK were deemed non-compliant with EU law.
But now, the chocolate manufacturer’s attempts to appeal this ruling at the European Court of Justice have also failed, after it was decided that the chocolate was not ‘well known’ enough across all EU nations to warrant its protected trade mark status EU-wide.
According to a report in The Guardian, Nestle only provided evidence to the European Court of Justice that the chocolate had a strong reputation in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden and the UK.
In the eyes of the advocate general, the chocolate manufacturer was unable to prove that the KitKat bar was well known for its iconic shape in the likes of Belgium, Greece, Portugal and Ireland.
Due to this, Judges dismissed the appeal and it will now be possible for other chocolate manufacturers to imitate the KitKat’s shape across the EU.
Commenting on the outcome of the case, a Nestle spokesperson said: “We believe [the attorney general’s] final conclusion is based on incorrect factual findings.
“Nestle did submit sufficient evidence to prove acquired distinctiveness of its iconic KitKat four fingers shape to meet the advocate general’s proposed threshold, including in the few countries where evidence was challenged.”