The ruling followed a long-running dispute between Nestlé and Cadbury – now owned by Mondelēz – over the shape of the classic confectionery.
The General Court in Luxembourg said: “None of the evidence taken into consideration established use of the mark in respect of bakery products, pastries, cakes and waffles.”
The ruling annulled Nestlé’s trademark for the shape of the Kit Kat. Previously, regulators said the company’s use of the shape for so long was evidence that it was exclusively associated with Nestlé across the EU.
Annulled Nestlé’s trademark
The court argued that not all countries within the EU would necessarily associate the shape of the bar with Kit Kat, since there were similar shaped confections available across the union.
However, it did acknowledge that the shape was recognised as being distinctive in 10 EU Member States: the UK, Germany, Austria, France, Italy, Spain, Denmark, Sweden, Finland and Netherlands.
Nestlé was pleased the court recognised the four-finger shape trademark had acquired distinctiveness in 10 member states of the EU.
“The judgement sets a high threshold for trade mark applicants to register shapes as EU trademarks by requiring evidence of acquired distinctive character in all EU Member States,” a Nestlé spokesman told FoodManufacture.co.uk
“We continue to review the findings and consider our position.”
The dispute will go back to the UK high court for a final ruling, which will determine if rival manufacturers can create four-fingered chocolate bars.
A Mondelēz spokesman told FoodManufacture.co.uk: “We are naturally pleased by this ruling by the General Court of the EU which is in line with our contention that the shape of the Kit Kat bar should not be protected as a trade mark across the EU.”
Meanwhile, the Icelandic government launched legal action against Iceland Foods last month (November 24) over the use of its name.
It claimed Icelandic businesses were “caused harm” as they couldn’t promote themselves with their place of origin.
Kit Kat – at a glance
Kit Kat is a chocolate-covered wafer biscuit bar confection created by Rowntree in 1935. It is now produced globally by Nestlé, which acquired Rowntree in 1988.
The standard bars consist of two or four fingers composed of three layers of wafer, separated and covered by an outer layer of chocolate.
Each finger can be snapped from the bar separately. Flavours of Kit Kat include matcha green tea, white chocolate, orange and strawberry.