Nestle's Kit Kat trademark shape must be re-examined

by Eric Schroeder
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Nesle Kit Kat
The court says Nestle's Kit Kat bar does not have inherent distinctive character throughout the E.U.

BRUSSELS, BELGIUM — The General Court of the European Union (EGC) on Dec. 15 has dismissed an attempt by Vevey, Switzerland-based Nestle S.A. to register its Kit Kat shape as an E.U. trademark for its chocolate candy bar.  According to the EGC, the Kit Kat bar does not have inherent distinctive character throughout the European Union, and “the distinctive character acquired through use of that mark must be shown in all the Member States concerned.”

As a result of its findings, the EGC said the European Union Intellectual Property Office (EUIPO) must re-examine whether the three-dimensional shape of Kit Kat may be maintained as an E.U. trademark.

In 2002, Nestle applied to the EUIPO for registration of the trademark for “Kit Kat 4 fingers.” Four years later, in 2006, EUIPO agreed to register the mark with respect to sweets, bakery products, pastries, biscuits, cakes and waffles.

Shortly after that, in 2007, rival Cadbury Schweppes — now owned by Mondelez International — asked the E.U. to declare the Kit Kat trademark invalid.

With the decision of Dec. 15, the Kit Kat four fingers bar shape can now be used freely.

“Although it had been established that the contested trademark had acquired distinctive character through use in 10 countries (Denmark, Germany, Spain, France, Italy, The Netherlands, Austria, Finland, Sweden and the U.K.), the Court considers that EUIPO could not validly conclude its examination without coming to a conclusion regarding the perception of the mark by the relevant public in, inter alia, Belgium, Ireland, Greece and Portugal and without analyzing the evidence adduced in respect of those Member States,” the EGC said. “The Court concludes that EUIPO erred in considering that it was not necessary to prove distinctive character acquired through use of a mark in all the Member States concerned. It follows that EUIPO will have to take another decision in which it verifies that, at the date of filing the application for registration, the mark in question had acquired distinctive character through the use that Nestle had made of it in the 15 Member States concerned in respect of ‘sweets and biscuits.’”

Nestle has the option of appealing against the decision before the E.U.’s highest court within two months. 
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