07:26, July 25 282 0 theguardian.com

2018-07-25 07:26:06
KitKat does not merit trademark protection, EU court rules

It is a question that has been debated by some of Europe’s finest legal minds for years: is there anything unique about a KitKat?

A final verdict came on Wednesday when Europe’s highest court ruled that KitKat’s four-fingered chocolate bar did not merit protected status in the European Union.

The European court of justice upheld an earlier ruling that the KitKat bar was not well-known enough throughout all EU member states to merit trademark protection. The “four trapezoidal bars aligned on a rectangular base” – as the court likes to describe the “KitKat four-fingers product” – will not be entitled to protection from copycats.

The ruling could pave the way for supermarkets and other chocolate makers to launch their own four-finger wafer bars.

The ruling is a major blow to Nestlé, the makers of the bar, which has spent 11 years embroiled in a costly legal challenge in European courts.

But it may leave a bitter aftertaste for food conglomerate Mondelēz, owners of Cadbury, who led the legal challenge. While the company secured a victory, some of its legal arguments were rejected.

The decision not to protect KitKat was expected after a senior jurist at the ECJ ruled in April that the bar did not deserve a pan-European trademark because it was not well known in all EU member states. The advocate-general, whose advice is usually followed, had concluded that KitKat was not sufficiently well known in Belgium, Ireland, Greece and Portugal, although it was established in other countries: Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland and Sweden.

There has been a similar case in the UK, that ended in a 16,000- word ruling that found KitKat had “no inherant distinctiveness”.

The ruling brings an end to a costly legal saga that began in 2002, when KitKat applied for protection of its design at the European Union’s Intellectual Property Office. Protected status was granted, but contested by Cadbury Schweppes in 2007, triggering an 11-year legal battle through European courts. Mondelēz took up the case, after Cadbury was bought by Mondelēz predecessor Kraft.

In a statement, the ECJ said previous judges had been “right to annul EUIPO’s decision” that KitKat had acquired a distinctive character.

A Mondelēz spokesperson welcomed the decision, saying: “We are pleased that the decision of the European court of justice supports our position.”

Nestlé has been contacted for comment.

The court ruling is only the latest legal skirmish over the shape and design of chocolate bars.

The two rivals in the KitKat dispute have been tussling in the courts, after Nestlé blocked Cadbury’s attempt to trademark the purple shade it uses for chocolate wrappers.

In 2012, the ECJ ruled that gold-foil wrapped chocolate bunnies made by Switzerland’s Lindt & Sprungli had “no distinctive character”.