The court has not yet ruled, but the opinion of the advocate-general – normally followed by the court – effectively ends Nestlé’s attempts to trademark the snack. It also ends yet another chapter in the chocolate war between rivals Nestlé and Cadbury.
Had its application been successful, Nestlé would have been able to prevent competitors from making chocolate bars with the same shape.
Nestlé has been arguing that, in the years the four-fingered KitKat bar was on the market, it had acquired a distinctive character. In other words: consumers would now immediately associate the shape of the KitKat bar to Nestlé. Hence, it has become a trademark. A survey even showed that 90% of people shown a picture of the bar, without any names or symbols embossed on it, mentioned KitKat in their comments.
It is now up to the highest European Court to decide if they’ll cut Nestlé a break. Or whether they will have to tolerate others making chocolate bars with a similar form, like the Norwegian “Kvikk Lunsj”, launched already in Norway in 1937.
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