Nestle Left Needing To Take A Break Following Trademark Defeat

In January, the UK High Court ruled that Nestle could not register the shape of the four finger Kit Kat biscuit. Now the Swiss manufacturer have lost their case to register the Kit Kat biscuit shape as a trademark to operate within the EU.

The General Court in Luxembourg ruled against Nestle arguing that the manufacturer had not provided enough evidence in order to show established use of the shape. Thus the decision of the Court means that the Kit Kat shape can now be used by other European manufacturers.

The Court cited the lack of evidence provided by Nestle in order to be successful in obtaining a trademark. The court pointed out that not all countries in the EU would associate the shape of the bar with Kit Kat. Researchers found that the Kit Kat had acquired distinctive character in 10 countries ranging from Austria and Sweden to the UK but not in other EU member states including Ireland and Greece.

Nestle have argued that their bar has been associated with them since the launch of the biscuit in 1935 and pointed out a survey showing that 90% of people associated an unbranded four finger chocolate bar with the manufacturer.

Yet the Court made clear that it was not enough for Nestle to show that a large proportion of the relevant EU public perceived a mark to be an indication of the commercial origin of the goods designated by the mark involved.  In response to the decision, Nestle have commented that the judgement from the Court has set a high threshold for trade mark applicants to register shapes as EU trademarks since the decision would now mean that an applicant would need evidence of acquired distinctive character in all EU Member States to be successful.

This forms part of a long running dispute between Nestle and Cadbury now owned by Mondelez International. Nestle were successful in 2013 in overturning a trademark owned by Cadbury for the colour purple on its chocolate bar wrappers.