Kit Kat Trade Mark Application Setback

Nestlé, makers of the iconic four-fingered chocolate bar, Kit Kat, has seen its attempt at registering a trademark for the Kit Kat chocolate bar in the UK suffer a setback.

The Advocate-General of the European Court of Justice has said that Nestlé's UK trade mark application for the four-fingered bar does not comply with EU law. Although it must be stated that opinions of the Advocate-General are not binding, they are certainly persuasive and generally followed by the EU Court.

Should the European Court of Justice follow the opinion of the Advocate-General, this would mark another development in the decade long war between Nestlé and Cadbury's, and significant, this decision would allow other chocolate manufacturers the opportunity to bring to the market chocolate bars of a shape and size akin to that of Nestlé's Kit Kat bar.

Nestlé had maintained that since the launch of the Kit Kat bar in 1935, the chocolate bar has acquired distinctiveness sufficient for it to be registered as a trade mark. Nestle even provided surveyed evidence in which 90% of individuals shown a non-branded four fingered chocolate bar mentioned Kit Kat in their response as proof of distinctiveness.

Ultimately, these arguments failed as the trade mark application, opposed by Cadbury's, was rejected in the High Court in 2013, and now looks set to be rejected by the EU Court.