EU Court Sends the KitKat Case Back to Trademark Office

The European Court of Justice has thrown out an appeal by the chocolate bar’s maker, Nestlé, which argued that it owns the shape of the teatime treat.

Nestlé has spent more than a decade fighting to trademark the four-fingered wafer shape – something that rival Cadbury had fought hard against.

A long-running legal battle was sent back to the EU’s trademark office on Wednesday, when judges dismissed appeals by both companies.

The ruling by the European Court of Justice means the EU Intellectual Property Office (EUIPO) must review a 2012 decision to uphold Swiss-based Nestlé’s (NESN.S) trademark on the shape of the four-finger chocolate-covered wafer biscuit over objections raised by Mondelez (MDLZ.O) of the United States, according to Reuters.

The Luxembourg court found that Nestlé had failed to show that consumers in enough EU countries recognized the shape as distinctive, but also dismissed an appeal by Mondelez against some of the grounds for a lower EU court ruling in 2016 that had found the EUIPO was wrong to reject the U.S. firm’s complaint.

The outcome leaves open that the trademark agency could, while respecting the judges’ ruling, take account of other evidence — such as new proof the shape is distinctive to people in more countries — and might preserve protection for KitKat’s shape. The brand name “KitKat” is not at issue in the case. 

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