An appeal by Nestlé, maker of KitKat, against an earlier ruling should now be thrown out, Court’s Advocate General advised Judges sitting in Luxembourg Court.
Advocate General, Melchior Wathelet stated that,”Company had only provided evidence that chocolate was sufficiently well known in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden and the UK”.
For Trademark to be valid KitKat would need to be recognised as distinctive across all EU’s states, as had been ruled by General Court, the second highest in the EU, in 2016.
Decision by Advocate General, whose advice is not binding but is generally followed, means that KitKat shape will now be open to imitation by Competitors.
It follows a decision by Appeal Judges in UK in against KitKat, which resulted in stripping KitKat of its UK-only Trademark on the basis that three-dimensional shape of a chocolate product had “no inherent distinctiveness”.
Appeal Court heard that Nestlé had spent between £3m and £11m a year advertising and promoting KitKats between 1996 and 2007. More than 40m were sold in Britain in 2010.
The Trademark Tussle in European Court of Justice is part of a wider battle between Nestlé and Mondelēz International, previously known as Cadbury Schweppes, which filed original challenge to EU trademark in 2007, a year after it had been granted. Nestlé, in turn, is challenging Mondelēz’s British Chocolate bars.
EU intellectual property office was said to have erred in law when it granted trademark status to the four-finger shape in 2006. Nestlé has not sought such a status for its two-finger bar.
Gaining the trademark status for shapes has proven to be particularly challenging for companies.
In 2016, Rubik’s Cube lost a decade-long battle to secure trademark protection for its own distinctive character.
However, Toblerone, which is also owned by Mondelēz International, got successfully trademarked its “zigzag prism” shape.
Source: Associated press