Kit Kat loses trade mark over its four-fingered bar

The EU’s General Court has ruled that Nestle loses trade mark protection for its well-known shape, revoking a mark held by Nestle since 2006.

In December the General Court in Luxembourg, (the second-highest court in the European Union), held that when Nestle made their application in 2002, they had failed to prove that Kit Kat had distinctive character throughout all member states. They said it was not enough showing that ‘a significant proportion of the relevant public throughout the EU, merging all the member states and regions, perceives a mark as an indication of the commercial origin of the goods designated by the mark’.

The EUIPO found that ten countries including Germany, France, Spain and the UK had acquired distinctive character, but not in other countries, such as Ireland, Greece and Portugal.

This decision means that the famous Kit Kat shape can be freely used by manufacturers.

This is the latest in the long running intellectual property legal battle concerning Kit Kat, but other manufacturers have recently suffered similar disappointments for their own 3-D trademarks. We previously commented on the dismissal of the 3D trademark of the toothbrush and the Rubik Cube . This, along with other decisions, reinforces the difficulty in meeting the test to protect shapes.