After 16 years of struggle, it has been decided that Nestlé is unlikely to be able to trade mark KitKat’s self-claimed distinctive shape. The European Court of Justice (ECJ) ruled that in order for a shape to be distinctive in character, it must be proven across all member state markets.
Nestlé began its movement for the trade marking of KitKat in 2002 and successfully applied in 2006 to the EU Intellectual Property Office (EUIPO). However, a rival company whose similar shaped, four fingered chocolate bar is a much-loved treat in Norway, opposed this decision. The Norwegian chocolate bar, Kvikk Lunsj, was launched only two years after KitKat and mirrors the shape of “four trapezoidal bars aligned on a rectangular base”, the exact shape KitKat wanted to claim as its own.
Since the opposition, the dispute has travelled through the European courts. The ECJ reached its decision by acknowledging that the KitKat shape lacked distinctiveness, for example there was no evidence from states such as Belgium and Greece proving that the shape was distinctive enough. The EUIPO had failed to assess the extent of acquisition of the distinctive character in enough Member States. The effect of this is that KitKat’s rival will not be infringing on any intellectual property rights and also allows local supermarkets to continue to produce similar products. Unfortunately for KitKat, their European trade mark status is no longer as secure as they once thought.
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