Nestlé suffers another blow in the branding business

The Supreme Court of Europe has given Nestle a major setback in its effort to mark the shape of the four-fingered KitKat.

The European Court of Justice (ECJ) rejected an attempt by Nestlé to overturn a decision that it had not done enough to prove that the shape of the chocolate bar deserved legal protection.

The ECJ stated that the European Union's Intellectual Property Office should now reconsider its decision to grant the company a trademark in the first place.

Paul Berwin, a senior partner at Berwins Solicitors, said the decision is likely to cost Nestlé its trademark.

"Nestle should find a new argument [to keep the trademark]," he said.

Nestle ( NSRGF ) fought the record of the marks for more than a decade, trying to prevent other chocolatiers from reproducing the form of his emblematic plaque.

The Swiss Food and Beverage Company originally obtained a trademark from the Office of Intellectual Property of the European Union in 2006. But this decision was challenged by the firm of rival confectionery Cadbury, acquired by Mondelez ( MDLZ ) .

A Mondelez spokesman said: "We are pleased that the decision of the European Court of Justice supports our position."

But Nestle said he was determined to keep fighting, and that the "distinctive form" of his KitKat deserved to be protected.

Berwin stated that the case showed the power of the marks.

"Companies like Nestle are not throwing money at the problems at the moment – they have fought long to try to maintain this brand because it has such value," he said.

Even though it loses the EU trademark, Nestlé may attempt to protect the form in the different Member States.

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Nestlé has already obtained a KitKat trademark in countries including Australia, the United States Canada and France. The High Court of Great Britain refused to allow Nestlé to make a mark in 2016.

This is not the only question that Nestlé and Mondelez have dealt with in court. Nestle previously blocked an attempt by Cadbury, a subsidiary of Mondelez, to protect a specific shade of violet.

CNNMoney (London) First published on July 25, 2018 at 12:00 ET