Not only Nestlè can make four-fingered KitKat
European court of justice: "not enough known"
The KitKat bar’s shape can be imitated. The Court of Justice of the European Union, the body that supports the law in the interpretation and application of EU founding treaties, has already passed on the complicated issue of the Nestlé product. More precisely, on the "three-dimensional mark representing the chocolate’s shape (four-bar chocolate) and its recognizability on a European level. For several years the multinational company has been trying to understand the product as inimitable, therefore protected at European level; it was in this way from 2006 until 2016
Melchior Wathelet, the General lawyer of the Court of Justice of the European Union (CgUe) has decided that the particular KitKat form can not be protected because, in short, Nestlé has not been able to demonstrate that the form is sufficiently known and recognized in all the main EU countries. According to the advocate, Nestlé was able to do it only for some countries (including Italy) but not for others (including Belgium, Ireland, Greece, Luxembourg and Portugal). For the trademark to be valid the KitKat would need to be recognised as distinctive across all the EU’s states.
On the question about the shape, Euipo, the EU intellectual property office, should express again. The Court of Justice is a part of a long legal skirmish between Nestlé and Mondelēz, previously known as Cadbury Schweppes. In 2006, Nestlé obtained the recognition of the “peculiarity and intrinsic distinctive character"at European level. In 2007 the competitor Mondelēz opposed however to the decision, starting the legal events still under way today, more than ten years later.
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