Nestlé, the manufacturer responsible for a number of household names like Aero, Nesquik and Shredded Wheat, is aiming to obtain a trademark for its KitKat bar.
KitKats are a popular product – over one billion bars are sold every year across Europe, North America and Asia.
The company is now arguing that its four-fingered snack should become a trademark in the UK, in its own right, regardless of its packaging or the KitKat brand name which is stamped onto the chocolate.
Following its trademark application being rejected by the High Court, due to opposition from rival confectioner Cadbury, Nestlé has decided to take its case to the European Court of Justice.
Nestlé’s argument is that a KitKat’s distinctive physical form has gradually come to be associated exclusively with the company, as much as any brand name or design.
Cadbury, meanwhile, has insisted that other products have a similar shape as a result of a cost-effective and simple manufacturing method commonly used to create chocolate-coated wafer bars.
For a trademark to be recognised by law it must distinguish goods and services from those of another company.
However, another rival chocolate bar – Kvikk Lunsj, meaning “quick lunch” in Norwegian – which was launched in 1937, has a very similar shape to the KitKat bar and is available in some retail outlets across the UK.
The four-fingered KitKat was originally called Chocolate Crisp and went on sale in England in 1935.
Soon after, its name was changed to KitKat Chocolate Crisp and then finally to KitKat, the name it still holds to this day, after the end of World War Two.
While Nestlé is only hoping to obtain a trademark for the four-fingered KitKat, and not the two-fingered version, the judgement is still expected to take several months.