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A Bittersweet Ruling Against KitKat in the EU

High court says shape of Nestle chocolate bar isn't unique enough to merit trademark protection
By Jenn Gidman,  Newser Staff
Posted Jul 25, 2018 10:25 AM CDT
A KitKat chocolate snack is photographed Wednesday in Rugby, England.   (AP Photo/Martin Cleaver)

(Newser) – "Four trapezoidal bars aligned on a rectangular base" may not be instantly recognizable. Put that setup in chocolate form, however, and many people would be able to distinguish it as a KitKat. Even if that's the case, the European Union's highest court just ruled that the shape of the sweet treat isn't unique enough to merit trademark protection, meaning other confectioners can potentially produce KitKat knockoffs, the Guardian reports. Nestle, which makes KitKats, has been fighting Cadbury (and then Mondelez, which ultimately bought Cadbury) in the courts for more than a decade on this issue.

The BBC notes that Nestle first applied for trademark protection for the candy's shape in 2002, and it was granted that protection four years later. Cadbury's pushback began in 2007, and Wednesday's decision by the European Court of Justice essentially tells the EU trademark office it now has to "reconsider" its original decision. What that means, however, is that if the EU Intellectual Property Office finds, based on more recent evidence, that the KitKat bar's shape is recognizable in enough countries, it can retain the trademark protection, per Reuters. The brand name itself of "KitKat" is not being contested. (Atari accused Nestle of ripping off one of its popular video games in an ad for KitKat.)

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