The European Court of Justice has thrown out an appeal by Nestlé, which argued that KitKat’s four-fingered wafer shape is a distinctive feature that deserves protection.
Wednesday’s ruling threw out Nestlé’s appeal, sending it back to the EU trademark office to “reconsider” its decision.
The Luxembourg court found that Nestlé had failed to show that consumers in enough EU countries recognized the shape as distinctive.
The chocolate company has spent more than a decade fighting to trademark the shape, with Cadbury coming up against the case strongly. Cadbury’s parent company Mondelez International owns a similar four finger shaped Norwegian chocolate called Kvikk Lunsj, meaning “quick lunch”.
The Norwegian bar has been around since 1937, two years after KitKat. In 2002, Nestlé applied for a trademark in Europe for KitKat. While there was no issue with the bar itself, the company also applied for the trademark for the shape of KitKat. After four years of back-and-forth, the EU trademark office granted Nestlé the shape as a trademark.
Mondelez International challenged Nestlé’s new trademark and the court battle began with appeal after appeal following. While the company loses its EU trademark for now, it can apply again with stronger evidence and hope to be successful in the future.