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The Swiss multinational Nestlé has lost today a long offer to register as a mark the four-bar shape of its "Kit Kat".
Nestlé initially asked the Intellectual Property Office of the European Union (EUIPO) to register the form of its Kit Kat bar as a registered trademark in 2002, which was granted in 2006.
But rival company Cadbury Sweppes (now owned by Mondelez International) filed an application for invalidation of registration in 2007
Mondelez also owns Freia, a Norwegian confectionery company who, in 1937, launched a similar four-bar wafer covered with milk chocolate, "Kvikk Lunsj". 19659003] The Nestlé version was first manufactured in 1935 in York, England. It was renamed "Kit Kat" two years later and began exporting internationally in the 1950s.
Distinctiveness
A judgment of the Court of the European Union in 2016 ruled in favor of Mondelez and annulled the EUIPO Decision alleging that the form had not acquired "distinctiveness" throughout the EU.
Nestlé and Mondelez both appealed the decision. Nestlé argued that proving that the Bar had a distinctive character in all EU Member States was too high a threshold, while Mondelez questioned that Nestlé's "Kit Kat" had a distinctive character in ten countries
. Wednesday's judgment confirmed the judgment of the Court that "the acquisition of a distinctive character by a mark initially devoid of inherent distinctiveness must be demonstrated throughout the EU" , and not only on a substantial part of its territory ".
Mondelez praised the decision in an e-mailed statement to Euronews
"As we noted above, our argument is that the shape of the bar" Kit Kat "should not be protected as a trademark." We are pleased that the decision of the Court of Justice of the European Union supports our position. "
Euronews contacted Nestlé for comments.
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