E.U. Rules Against Nestlé in Kit Kat Suit

The E.U. says Nestlé cannot trademark the shape of a Kit Kat bar

Wikimedia/Sean Murray

An E.U. court has ruled against Nestlé's attempt to trademark the shape of a Kit Kat bar in Britain. 

The four-fingered shape of a Kit Kat bar is instantly recognizable to anybody who has ever had one, but an E.U. court just ruled that the shape is not distinct enough for Nestlé to trademark it and stop other candymakers from producing chocolate bars in four-finger shapes like that.

According to The Local, Nestlé had filed a trademark application for the shape of a Kit Kat bar in Britain in 2010, but Cadbury fought it. In 2013 a British court reportedly threw out the trademark application, effectively siding with Cadbury, but Nestlé appealed to the European Court of Justice.

Nestlé argued that the four-fingered, break-off shape of the Kit Kat was distinctive and unique to that bar, but on Wednesday the court reportedly said that Nestlé still had to prove that the shape was distinctive enough that a reasonable person could identify a Kit Kat bar by shape alone, without any other words or markings.

"The trade mark applicant must prove that the relevant class of persons perceive the goods or services designated exclusively by the mark applied for, as opposed to any other mark which might also be present, as originating from a particular company," the court said in its ruling.

The European Court of Justice said it was up to the British High Court to make a final ruling.

"It is up to the British courts to decide, on the basis of this response, if the form of Kit Kat chocolate bars can be registered as a trademark or not," the E.U. court said. The British High Court already threw out the trademark application in 2013.

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