Nestle has been trying to trademark its four-fingered wafer shape of Kit Kat for more than a decade now. The European Court of Justice has finally ruled against it, which means it can lose its exclusive right to the four-finger shape in the European union.
Nestle has been arguing for a long time that the Kit Kat’s four trapezoidal bars, linked by a rectangular base had enough of a distinctive character to deserve a trademark across Europe. But the European court has thrown out it’s appeal. Let’s look at how this all began.
In 2002, the chocolate giant applied for a trademark in Europe for Kit Kat, the bar embossed with the Kitkat Logo. In addition it also applied for the trademark for the shape of the bar, with the application stating that the shape was recognized as distinctive in most European countries. It was granted by Europe’s trademark group after four years.
Then the Norwegian chocolate makers, Kvikk Lunsj, Mondelez (also owns brands including Cadbury, Oreo and Toblerone) took issue with Nestle as they were already making four-fingered chocolates. The subsidiaries of Mondelez offer similarly shaped, popular products in several European markets. The European trademark group rejected Mondelez’s appeal in 2002 but the company fought and won in 2016 when the General Court of Europe ordered the trademark group to reconsider the appeal. This decision provoked all the parties; Nestle, Mondelez and European Intellectual property office. The result was that all three parties appealed at the Court of Justice for different reasons.
So the Kit Kat is set to lose its EU trademark for now, but as Nestle said that the judgement was ‘not the end of the case’. The trademark group might side with the company or it could apply again with stronger evidence.