EU Court Doubts Validity of Kit Kat Shape Trademark

(CN) – The European General Court ruled Thursday that the EU’s trademark office must reconsider whether the trademark of the shape of Nestle’s Kit Kat chocolate bars should remain valid.

Nestle trademarked the three-dimensional shape of its Kit Kat 4 Fingers candy bar in 2006. But the following year, Cadbury Schweppes – now Mondelez UK – asked the EU trademark office to invalidate Nestle’s mark.

The trademark office rejected that request, finding Nestle’s mark had acquired distinctive character through the proliferation of Kit Kats throughout the EU.

But on Thursday, the EU’s lower court ordered the trademark office to reconsider Cadbury’s request. Specifically, the court found the office had registered the mark for categories that don’t apply to Kit Kats – bakery products, pastries, cakes and waffles.

And while the Luxembourg-based court acknowledged that the Kit Kat shape has acquired distinctive character through use in 10 of the 15 member states that belonged to the EU when Nestle first applied for the mark, the trademark office had a duty to analyze consumer data from all 15 states – something it failed to do when it rejected Cadbury’s invalidation request.

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