Toblerone’s famous pyramid-shaped chocolate bars are trademarked, but Nestlé, world's largest food and beverage company, has failed to secure trademark protection in Europe for the shape of its four-fingered KitKat chocolate bar.
The European Court of Justice (ECJ) did not seem to give Nestle a break in its decade-long legal battle with rival Mondelez, maker of Cadbury chocolate, over the shape of chocolate-covered wafer biscuit KitKat.
On Wednesday, ECJ, the Supreme Court of the European Union (EU), ruled that Nestle cannot trademark the shape of its popular chocolate bar as it failed to provide the evidence of distinctive feature for KitKat that it deserves legal protection across Europe. The ruling is the latest development in a long-running legal battle between the Swiss-based company Nestle and its competitor Mondelez-owned Cadbury. Nestlé contends that the KitKat’s shape is “unique” and should be protected by the law but Cadbury has an objection. The court has not cancelled permanently cancelled the trademark appeal but has asked the EU's Intellectual Property Office (EUIPO) to reconsider the Nestle’s appeal to grant Kit Kat an EU trademark based on its shape, a News18 article said.
Kit Kat, developed 80 years ago, is a confectionery staple in grocery and convenience stores across the world and is the first chocolate bar to earn a global following. But, Nestle and Cadbury have spent years in court fighting over the shape of KitKat. In Europe, the battle between the two food companies goes back quite further.
According to confectionerynews.com, Nestle had for 16 years sought to secure trademark protection for its product's four-fingered wafer shape in the face of legal challenges by Cadbury. Nestlé applied to trademark the distinctive KitKat in 2002 and initially succeeded. But KitKat's competitors, specifically, Cadbury, objected. This triggered a series of court cases and appeals for over ten years.
In 2007, Cadbury filed a request to the European Union Intellectual Property Office (EUIPO) to declare Kit Kat’s existing trademark as invalid. The EUIPO rejected the request. In 2010, Nestlé formally filed for a trademark in the UK court, the application was opposed by the Cadbury, and six years later, in 2016, an EU court cancelled the trademark, saying that Nestlé had failed to prove that KitKat has a "distinctive character" across all EU states, said a Business Insider report.
And on Wednesday, Europe's top court threw out Nestlé's appeal, dampening its effort to be the sole manufacturer of four-fingered chocolate bars in Europe. Despite being among the most recognisable shapes in confectionary and achieving sales of $32-43 million annually. The Court of Appeal said the KitKat bar shape did not meet the threshold needed for such protection, the Quartz reported.
Nestlé has successfully trademarked the Kit Kat shape in Australia, Canada, France, Germany, and South Africa, but trademark remains elusive in the European Union.
It doesn’t look like the trademark battle is going to subside as Nestlé said it will appeal again in the court of law and isn’t ready to give up the fight.