Nestle defeated in legal case to copyright the shape of Kit Kat bars

kit kat

A European court rejected an appeal by Nestle today to copyright the shape of its Kit Kat chocolate bars.

The Court of Justice of the European Union (CJEU) said that Nestle was unable to copyright Kit Kat’s shape as it had not acquired “distinctive character” throughout the entire European Union.

While it had previously been accepted that the mark had gained distinctive character in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden and the UK, it had not done so throughout every member state.

In 2006 the European Union Intellectual Property Office’s (EUIPO) had ruled that Nestle could copyright Kit Kat’s shape, but that decision was overturned in 2016.

Cadbury owner Mondelez had lobbied hard against Nestle’s attempt to trademark the chocolate bar shape and the court today dismissed a separate appeal from Mondelez on the subject.

Commenting on Nestlé’s failure to register the trademark shape of its KitKat bar, Claire Lehr, partner and Head of Trademarks at EIP Europe LLP, said: “This development will be a big blow to Nestlé since it will likely lose its EU trademark for the four fingered chocolate bar, although it may not have been such a surprise since the UK courts have already found that the four-finger shape was not distinctive.

The battle for recognition of the distinctiveness of the four-finger chocolate bar has been ongoing for 16 years.  In the latest twist, the CJEU has ruled that the EUIPO must again consider whether the four-finger bar is sufficiently distinctive such that a consumer would automatically recognise it as a KitKat – without the words, logo or wrapper.

The case demonstrates the difficulty that manufacturers have in obtaining trademark protection for shape marks.  It is not impossible – shape marks have been obtained for other confectionery products such as Toblerone and Nestlé’s Walnut Whip, although these are arguably more distinctive in shape.”