“Have a break…Have a Kit Kat!” is one of the most loved tagline by individuals of every age group. The news of Toblerone changing its shape came as a surprise for chocolate lovers and the global chocolate industry. Recently, another shocking news that is getting limelight is that KITKAT four-fingered shape might not get the trademark protection in the European Union.
The senior adviser to the European Court of Justice held the four-fingered shape of the chocolate was not recognizable enough by the customers. It does not have the distinctive quality necessary for trademark protection. The story began in 2006, when a trademark protection was granted by the European Union Intellectual Property Office for the “three-dimensional shape” of the four-fingered KitKat to Nestlé. This registration was later challenged by Cadbury, which was rejected by the European Union Intellectual Property Office reasoning that the shape of the chocolate was not ‘distinctive’ enough. The first blow for Nestle came in 2016 when the General Court while deciding the appeal in the same case, cancelled the registration of Nestle. The decision was later appealed to the European Court of Justice (ECJ) by both Nestlé and the EU agency. However, recently the Advocate General Melchior Wathelet in an opinion handed down to the ECJ has favored Cadbury and recommended that ECJ judges should dismiss the appeals and uphold the decision to annul the trademark. Mr Wathelet argued Nestle doesn’t have “sufficient” evidence to show its trademark had acquired distinctive character and the lower General Court’s findings to be “manifestly inadmissible” because Mondelez’s (the company which now owns Cadbury) overall complaint against the Nestle trademark had been successful.
The ECJ is not bound by the opinion of the Advocate General. Though it will be interesting to see the final turn that this decade long battle between Nestle and Cadbury would take.