The European Court refused to protect Kit Kat as a trademark

The Court of Justice of the European Union (CJEU) asked the European Intellectual Property Office (EUIPO) to reconsider whether the three-dimensional form of the product " Kit Kat 4 rods "can be maintained as a European mark.

The Luxembourg court dismisses the appeals brought by Nestlé EUIPO and Mondelez against the decision of the General Court of the European Union.

The dispute dates back to 2002, when Nestle applied for registration as a European trademark of the four bars of chocolate and wafer of "Kit Kat", which is what it is. EUIPO subscribed in 2006, for the category of "sweets, bakery products, confectionery, biscuits, cakes, waffles".

In 2007, the group Cadbury Schweppes (now Mondelez UK Holdings) requested the cancellation of this mark, considering that lack of distinctive character, what the UIPO E dismissed

In 2016, the Court of First Instance annulled the decision of the European Intellectual Property Office on the ground that it had erred in concluding that the mark had acquired distinctiveness because of its use. in the Union. For part of the EU

According to the European courts, only the mark had this distinctive character in Denmark, Germany, Spain, France, Italy, Holland, Austria, Finland, Sweden and in the United Kingdom. The judgment did not satisfy any of the parties who appealed to the CJEU

Mondelez criticized the Tribunal for finding that the mark in question was distinctive in those ten Member States. "

part, Nestle and EUIPO argued that the judgment incorrectly stated that the owner of a Community trademark, which by definition is valid throughout EU and coexists with national marks, it must demonstrate its distinctive character in each of the Member States because the unitary character of the Union mark is "incompatible".

The General Council of [19459005CJEU also rejected this interpretation, claiming that a Union mark can not be registered if the public of a party of the Twenty-eight does not perceive it as such.

In today 's judgment, TJUE declares "inadmissible" the appeal brought by Mondelez as it is not about "the quashing of the judgment of the judgment under appeal ", but" the modification of certain legal bases of this judgment "

Relative to Nestl and EUIPO the Court confirms the judgment of the Court, according to which the acquisition of the distinctive character of a mark devoid of intrinsic distinctiveness must be accredited on the I & # 39; 39, the entire territory of the Union and not only in a substantial part of the territory.

EFE