According to the European Court of Justice, the shape of chocolate bar KitKat is not distinctive enough to warrant protection. It is the umpteenth statement in a dispute with competitor Leo that has been dragging on for 11 years. Nevertheless, the case is still not at an end.
Back to square one
Ever since 2002, Nestlé is trying to get the exclusive right in Europe for the specific form of KitKat, a tablet with four bars that you can break off. Initially this seemed to be successful: in 2006 the brand received a protected status from the European Union Intellectual Property Office (BIEEU), but competitor Cadbury (the producer of Leo and now part of Mondelez) protested – leading to a series of court decisions and appeal procedures.
In the latest episode, the European Court of Justice has ruled that KitKat is not entitled to trademark protection because the specific design is not associated with the brand in all European countries, following an earlier advice from the Advocate General. A serious setback for Nestlé, but the company does not give up the fight yet. The case now goes back to the BIEEU, which will have to decide again whether the shape of KitKat is distinctive enough. To be continued, again.
