ECJ breaks Nestlé’s hopes of trademarking Kit Kat shape across Europe

In a ruling today, the court said the company had failed to show its shape was sufficiently distinctive in all the countries in which it sought to trademark it.

It added: “Therefore, the Court upholds the General Court’s judgment in which the latter held that the acquisition of distinctive character by a mark that was initially devoid of inherent distinctive character must be shown throughout the EU, and not only in a substantial part of the territory of the EU, and consequently, although such proof may be produced globally for all the Member States or groups of Member States, it is not, however, sufficient that the party with the burden of providing such evidence produces only evidence that fails to cover part of the EU, even a part consisting of only one Member State.”

Nestlé had succeeded in 10 countries: Spain, France, Germany, the Netherlands, Denmark, Italy, Finland, Austria, Sweden and the UK. However, it could not prove its case in Ireland, Belgium, Portugal and Greece.

It already enjoys protection in Canada, Australia and South Africa.

Judges also dismissed competitor Mondelez’s case that the snack giant had failed to prove the distinctiveness of the bar in the first 10 countries.

The appeal sought to overturn a ruling from 2016 which said shape alone did not determine the product but that customers were swayed by brand names.

In 2006, the trademark was granted but this was contested by Mondelez, prompting the legal battle between the confectionary companies.