Nestle faces being stripped of its EU trademark for the iconic four-fingered KitKat design after failing to prove the chocolate bar is popular enough across Europe.
Judges sitting in the European Court of Justice in Luxembourg today opened the door for rival firms to copy one of the confectionery giant’s best known products. Dismissing an appeal by Nestle, the court said KitKats are sufficiently well-known in the UK, as well as Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, and Sweden.
However, the chocolate treat does not enjoy the same level of popularity in Belgium, Ireland, Greece and Portugal, the court ruled.
The decision means that the EU Intellectual Property Office (EUIPO) must now reconsider whether Nestle can retain the KitKat shape as an EU trademark.
Today’s appeal decision confirms a 2016 court judgement that forced Nestle to prove KitKat’s popularity across the EU.
This is the latest development in a confectionary battle that has been waged between Nestle and its rival Mondelez International – which was previously known as Cadbury Schweppes.
Mondelez challenged the KitKat trademark in 2007, arguing it was not distinctive enough to be given the coveted protected status.
Nestle has in turn challenged the British trademark of Mondelez’s purple Dairy Milk wrapper, while Mondelez successfully trademarked the zig-zag prism shape of its Toblerone product.
The EU appeal court heard Nestle has spent up to £11 million a year advertising and promoting KitKats between 1996 and 2007, selling more than 40million in Britain in 2010.
However the firm lost its UK trademark for the chocolate bar when British judges agreed the four-fingered shape was not distinctive enough.
The status of the two-fingered KitKat remains unchanged as Nestle has not sought trademark status for that product.
