Nestle fails to get its break
Over 10 years ago Nestle was granted an EU trade mark for the shape of its four-fingered Kit Kat. However this particular trade mark has been at the centre of a long running dispute with rival brands, namely Mondelez, the company that owns Cadbury, who argued that the shape was not distinct enough to be a valid trade mark.
In 2016 a decision by the Advocate General of the European Court of Justice ruled that Nestle could not trade mark the shape of its original Kit Kat. Nestle appealed this decision, but today the European Court of Justice ruled that this appeal should be thrown out.
The decision boiled down to whether the Kit Kat shape had become distinct enough that consumers recognised the product on its shape alone. Nestle had previously provided evidence that the chocolate bar was sufficiently well known in a number of European countries, however the ECJ ruled that for the trade mark to be valid, such distinction would need to be shown across all EU states. Nestle was unable to provide such evidence for Belgium, Ireland, Greece and Portugal.
What does this mean?
The EU Intellectual Property Office must now reconsider whether the 3D shape of the chocolate bar can be retained as a trade mark. The result being that Nestle is at risk of losing its EU shape trade mark. It remains to be seen whether Nestle is willing to spend even more on this long running court battle.
This result arguably opens the door to other brands creating a similar shaped four fingered chocolate bar and sets a high bar for achieving registration of shape trade marks.