The swiss Nestlé has lost on Wednesday in a battle before the european court, but not yet the war to defend its trademark, the form “four fingers” of its famous confectionery Kit Kat. The ruling Wednesday by the Court of justice of the EU (CJEU) is yet another twist in the battle that has been ongoing since more than ten years of Nestlé in the u.s. Mondelez, maker of Cadbury chocolate, well decided to cut him of croupières on the market of chocolate bars with this famous three-dimensional design.
The Court, based in Luxembourg, has sent the case back to its starting point: it has asked the Office of the EU for intellectual property (EUIPO) “to re-examine whether the three-dimensional shape corresponding to the product ‘Kit Kat 4 bars’ can be maintained as a mark of the Union”. The european Court of justice notes that it has been established that the mark of four fingers has acquired a distinctive character through use in ten countries (Denmark, Germany, Spain, France, Italy, the netherlands, Austria, Finland, Sweden and the United Kingdom), this is not the case for the other four (Belgium, Ireland, Greece and Portugal).
“The swiss manufacturer has lost a battle”
It is therefore necessary that the UEIPO scene turn towards the issue because of these four countries, where consumers have not recognized the ‘four fingers’ as the iconic Kit Kat. The CJEU had to decide on a first determination made by the Court of the EU on 15 December 2016, which has allowed Mondelez to score a point. “Today nobody won, nobody lost. Nestlé has gained time because his mark is currently registered,” said a source at the Court of Luxembourg. “The swiss manufacturer, however, has lost a battle,” continued the source, “because he would have preferred to have been confirmed in the decision of 2006 to the Office of the EU for intellectual property (EUIPO)”. The latter had in effect agreed to apply to register a four-finger Kit Kat as a trademark in the EU for Nestlé.
A contested decision as from 2007 by Mondelez, which produces a confectionery Norwegian similar in form named ‘Kvikk Lunsj’ (Quick Lunch: editor’s note). In may 2017, Nestlé had already lost an appeal on the form of these chocolate bars, in Great Britain — a country that is still a member of the EU, but that is going to leave the Union in march 2019.
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