Four-finger confectionery? It's not distinctive.

The European Court of Justice has decided (finally) that Nestlé does not own the shape of its four-fingered Kit Kat.

Nestlé has spent the best part of 15 years in the battle to trademark the shape for its confectionary product, and Cadbury has spent most of that time opposing them. Today's judgment should be the final nail in the coffin for the mark, which was also rejected at the previous appellate stage.

The saga dates back to 2002 when Nestlé applied for an EU Community Trade Mark for the bar itself (including the Kit Kat logo) and additionally for "four trapezoidal bars aligned on a rectangular base". They received the mark for the bar itself in short order, and after four years of deliberations and submissions, OHIM (the predecessor of the EUIPO) granted the shape mark also.

In 2007, Cadbury launched its first appeal and the case has been stuck in a series of appeals and cross-appeals ever since. While one might think that the European Court of Justice's decision should put an end to the matter, alas, that is not the case. Despite being the most senior court in the EU, the court has actually annulled, rather than overturned, the original decision.

What this means is that the original decision on whether to grant the trademark (way back in 2002) has been reopened. It is thought that if the EUIPO does not believe the shape to be distinctive across the entire EU (which appears to be the test accepted by the Court of Justice), it will remove the mark from the register. However, even if it does that, Nestlé would be allowed to remake the application.

Nestlé already have protection of the shape of the Kit Kat in many EU countries individually, and it is unknown whether they will persevere with their attempts to get EU-wide protection.

Nestlé's opponent throughout this case, Cadbury, is itself no stranger to shape-marks. Its owner, Mondelez, has been successful in obtaining a shape-mark for Toblerone, and had it upheld when fighting off an imitation product from Poundland in litigation last year.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.