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No break for Kit Kat in four-finger trademark battle

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After nearly a decade of trying to trademark its four-finger Kit Kat shape in the UK, Nestle has not been given a break.

Judges at the European Court of Appeal have dismissed the company’s attempt to have the shape of the bar trademarked – another setback for the food giant in a decade-long battle.

The court said in its ruling that Nestle had not shown that Kit Kat’s shape is a sufficient mark of distinctive character in all the countries it seeks a trademark.

The firm had been able to prove the bar’s distinctive character in 10 countries – Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden and the UK – but could not do the same for Belgium, Ireland, Greece and Portugal.

The shape is already protected in Australia, Canada and South Africa, but getting the same level in Europe and the UK has been difficult.

It's main rival is the four-finger Kvikk Lunsj which is a Norwegian treat
Image:
Its main rival is the four-finger Norwegian treat, Kvikk Lunsj

Nestle has faced several setbacks in the past – most notably from Cadbury but also Mondelez (which now owns Cadbury), which manufactures a similar looking four-finger bar in Norway, called Kvikk Lunsj.

Judges rejected Mondelez’s case that Nestle had not proved the bar’s character in the first 10 countries.

Three months ago, a legal adviser told judges to reject the latest appeal.

It sought to overturn a 2016 ruling which said shape alone did not determine the product, but that customers were influenced by brand names.

In 2006, the EU granted the trademark to Nestle for the shape of the bars, but this was contested by Mondelez, and since then the court battle has gone back and forth between the two confectionery companies.

Nestle first applied for the trademark for the shape of the bar, without the addition of the Kit Kat logo embossed on the top, in the UK in July 2010.

Court documents showed that in 2013, a UK examiner determined the trademark in question was “devoid of inherent distinctive character” and rejected the request.

Mondelez and Nestle have often been locked in courtroom battles, with Nestle blocking Cadbury’s attempt to trademark their shade of Dairy Milk purple.

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