Nestlé dealt a blow in KitKat trademark row
A protracted EU court battle over the trademark for Nestlé KitKat has taken a turn this week, with the European Court of Justice taking advice from the advocate general that the bar's shape is not distinctive enough across the Bloc to be given trademark status.
20 April 2018
Despite being a hosuehold name for decades, the four-finger KitKat looks set to lose its protected trademark status in the EU after the Court of Justice was advised that the bar is “not distinctive enough” in all EU member states to be designated as such.
The Irish Times reports that the decision comes on the back of an appeal by Nestlé against an earlier ruling, but that the Court’s advocate general advised that the bar is not well-known enough in Ireland and three other EU countries.
For the KitKat’s shape to be trademarked, it would have to be recognised as distinctive across all of the EU member states. The advocate general advised the court that this was not the case in Belgium, Greece, Portugal and…Ireland!
This is a surprising outcome given that the KitKat has been a household name in Ireland for decades, but the report states that Nestlé failed to provide evidence of the distinctiveness, and so the decision was made accordingly. The advocate general’s advice is not legally binding, but is generally adhered to by the court.
The decision is part of an ongoing series of skirmishes between Nestlé and Mondelez, which filed the original challenge to the KitKat’s protected status, which was originally granted in 2006.