KitKat loses 16-year-old case to trademark its 4-fingered wafer bar
After a decade-long battle to trademark its four-finger wafer shape, KitKat-maker Nestle has been asked to take a break by the European Court of Justice. On Wednesday, the ECJ dismissed an appeal by Nestle that challenged an earlier court decision to nullify a trademark awarded to KitKat by the European Union Intellectual Property Office (EUIPO), thereby ending the long-drawn case. Here's more.
In 2006, Swiss food giant Nestle secured a trademark for its four-finger KitKat wafer shape from the EUIPO, much to the ire of American confectionary giant and Cadbury-owner Mondelez. Mondelez was irked particularly since it manufactures two products shaped like KitKat - Kvikk Lunsj, and the Leo bar. The issue went to court in 2007, and the battle has raged ever since.
In 2016, a lower EU court annulled the EUIPO's decision to grant Nestle a trademark for KitKat, saying that Nestle had to prove that KitKat had "enough distinctive character through use" in all EU markets, and not some. Although the court acknowledged that KitKat had fulfilled required criteria in 10 nations, it had no evidence of distinctive character in Belgium, Ireland, Greece, and Portugal.
The lower court's decision didn't sit well with either Nestle or the EUIPO, both of whom argued that proving distinctiveness in all EU markets was a standard that was impossible to achieve. Subsequently, Nestle challenged the ruling in the ECJ. Meanwhile, Mondelez argued that KitKat had not achieved a "distinctive character" anywhere, and criticized the lower court's acknowledgement of KitKat's distinctiveness in 10 nations.
The ECJ's Wednesday ruling dismissed all the aforementioned appeals and ruled that KitKat had failed to achieve distinctiveness in "a significant part of the EU", citing case-law that states that a product can only receive a EUIPO trademark if it proves distinctiveness in areas where it previously had not. Thus, as it stands, Nestle's trademark for KitKat is set to get cancelled.