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Can the "three-dimensional design" of certain chocolate bars be considered a mark? A judgment delivered by the Court of Justice of the European Union ( CJEU) constitutes an umpteenth rebound in the battle which opposes for more than ten years Nestlé to its American competitor Mondelez . Chocolate maker Cadbury, the latter is determined to chop the market for chocolate bars with this famous three-dimensional design.
The CJEU, based in Luxembourg, has returned the case to its starting point. It asked the European Union Intellectual Property Office (EUIPO) "to reconsider whether the three-dimensional shape corresponding to produced" KitKat 4 bars " can be maintained as a Union mark" .
The European Court of Justice notes that although it has been established that the four-finger mark has acquired distinctiveness through use in ten countries (Denmark, Germany, Spain, France, Italy, the Netherlands Austria, Finland, Sweden and the United Kingdom), this is not the case for four others (Belgium, Ireland, Greece and Portugal).
It is therefore necessary for UEIPO to reconsider the question because of these four countries, where consumers have not recognized "the four fingers" as emblematic of KitKat.
"No one has won, no one has lost"
The Court of Justice of the European Union was to rule on a first decision issued by the General Court of the European Union , December 15, 2016, which allowed Mondelez to score a point
"Today no one has won, no one has lost, Nestlé has gained time because its brand is still registered ", said a source at the Luxembourg Court. "The Swiss manufacturer, however, lost a battle," continued the source, "because he would have preferred the confirmation of the 2006 decision of the European Union Office for Intellectual Property."
This body then agreed to register the four-fingered form of KitKat as the European Union brand for Nestlé. A decision challenged in 2007 by Mondelez, which produces a Norwegian confectionery of similar shape called 'Kvikk Lunsj' (Quick Lunch: Ed). 19659011] function (f, b, e, v, n, t, s) {if (f.fbq) return;! n = f.fbq = function ()
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