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Marketing Legal

Nestlé loses European appeal to protect Kit Kat's four-finger shape


By John McCarthy, Opinion editor

July 25, 2018 | 4 min read

The European Court of Justice has dealt a blow to Nestlé by claiming the four-finger wafer biscuit shape of the Kit Kat is not distinct enough to be trademarked.

Nestle Kit Kat

Nestlé loses European appeal to protect Kit Kat's four-finger shape

The confectionary giant has lost its most recent appeal on the matter, following a legal battle which has lasted longer than a decade.

On Wednesday (25 July) the court said that the chocolate bar on its own did not have a distinctive enough character to put the trademark in place. As a result copycat Kit Kat-shaped bars can legally be sold by rival companies.

As supermarket's own-brand imitations and rival snack products can look like a Kit Kat, the ruling is likely to bite into Nestlé’s bottomline.

One particular rival is the Norweigian Kvikk Lunsj which came to market in 1937, two years after the Kit Kat progenitor, the Chocolate Crisp. Since 2002, Nestlé has tried to trademark the 'four trapezoidal bars aligned on a rectangular base'.

While Nestlé was originally granted the rights to the shape, rival chocolate-makers took umbridge and launched appeals to see the legal precedent annulled. BBC News has outlined the years of courtroom skirmishes that led to the most recent decision in Europe’s highest court.

A Nestlé spokesperson said the case still has legs: “We believe that the distinctive shape of our four finger Kit Kat 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.

“Today’s judgment is not the end of the case and concludes that the distinctiveness of a trademark (in this case, the shape of our four finger Kit Kat) does not need to be established in each and every EU country but rather across the EU as a whole using a variety of evidence.

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

Tania Clark, partner and trademark attorney at intellectual property firm, Withers & Rogers, said: “The ECJ has given the last word in this hotly-contested dispute between two rival chocolatiers, which has gone on for more than a decade.

“Despite attempting to provide evidence that the four-fingered shape of its chocolate bars is instantly recognisable to many people as a Kit Kat, Nestlé has been unable to convince the courts of its right to exclusivity, particularly as other four-fingered chocolate bars, such as the Norwegian, Kvikk Lunsj, have also been sold in Europe for many years.

“This dispute demonstrates the lengths that brand owners will go to in order to protect the shape of their products and prevent competitors from copying them. Whilst this protection can be difficult to achieve, they are unlikely to stop trying.”

Nestlé’ will now have to fight the ruling on a nation-by-nation level. It already holds the trademark in France, Germany, Spain and Italy.

Chocolateers are protective of their IPs, Cadbury failed to register its purple branding years ago. Toblerone is another brand trying to protect its distinctive shape.

Marketing Legal

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