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No break for Nestlé!

10 August 2018

In the dispute between Nestlé and Mondelez concerning the shape of the “four-fingered bar”, the Court of Justice of the UE (CJUE) issued a decision on 25 July 2018 according to which the shape of the KitKat chocolate bar is not distinctive enough to be protected as a tridimensionnal trademark.

Indeed, following several market surveys in14 European Union countries, the distinctiveness acquired through use was recognized only in 10 countries. Consequently, the CJUE requests the EUIPO “to reconsider whether the three-dimensional shape of a ‘4 Finger KitKat’ can be retained as an EU trade mark”.

This decision highlights the difficulty of obtaining and maintaining protection as a three-dimensional trademark.

Whatever the outcome of this new examination may be, this administrative and legal battle could on for a long time!


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