London, July 25 (IANS) The European Court of Justice on Wednesday ruled that while the makers of renowned chocolate bar Kit Kat might rightfully own the product’s name, they cannot claim ownership of its well-known shape.
Swiss transnational food and drink company Nestlé had for more than 10 years sought to secure trademark protection for its product’s four-fingered wafer shape in the face of legal challenges by chocolate-making rival Cadbury.
“In 2002, Nestlé applied to EUIPO (European Union Intellectual Property Office) to register the three-dimensional sign as an EU trademark, which corresponds to the ‘4 Finger Kit Kat’ product which it markets,” the court said in its ruling, cited by Efe news.
It added that EUIPO had proceeded in 2006 to register the mark under the category of sweets, bakery products, pastries, biscuits, cakes and waffles.
Then, in 2007 Cadbury Schweppes (now Mondelez) sought to invalidate the registration, but the property office said the product “had acquired distinctive character through the use that had been made of it in the EU”, in effect protecting the chocolate bar’s shape.
However, the European court subsequently annulled EUIPO’s decision, and now it has upheld that ruling.
The Kit Kat shape was only trademarkable if it was distinctive in all of the EU countries and those that trade using product laws in common, such as Norway.
This was not possible because there is another similar product in Norway.
“Nestlé, Mondelez and EUIPO appealed to the Court of Justice against the judgment of the General Court,” the ruling said and added, “the Court dismisses the appeals of Nestlé and EUIPO”.
The decision confirmed the legality of snacks like Norway’s Kvikk Lunsj which has an identical shape to Kit Kat and has been in production for some 80 years and also creates an opening for imitations that might look like the tea-time chocolate covered biscuit.