A spokesman for the global food manufacturer said: “Today’s judgment is not the end of the case and concludes that the distinctiveness of a trademark – in this case, the shape of our four finger Kit Kat – does not need to be established in each and every EU country but rather across the EU as a whole using a variety of evidence.
“We think the evidence proves that the familiar shape of our iconic four finger KitKat is distinctive enough to be registered as an EU trademark.”
‘Distinctive enough’
Nestlé argued that the court did not make any ruling as to whether the Kit Kat four-finger shape can be registered as an EU trademark. Instead, it had issued a ruling on the test for registering an EU trademark based on acquired distinctiveness.
However, it said the ruling had provided clarification that acquired distinctiveness did not need to be established in each and every Member State, but globally in the EU through a variety of evidence.
With this in mind, Nestlé said it would be sending the case back to the EUIPO Board of Appeal to examine the evidence it had filed, in light of the new guidance.
Acquired distinctiveness
The company was confident the evidence submitted would be sufficient to prove acquired distinctiveness of the four-finger shape throughout the EU and that its registration as an EU trademark would be confirmed.
It noted that it already owned trademark registrations for the Kit Kat shape in several EU countries, including France, Germany, Spain and Italy.
Meanwhile, one lawyer claimed the latest ruling against Nestlé could substantially frustrate food manufacturers seeking EU-protection of their brands.