Apparently not, according to the European Court of Justice (ECJ) today which made an important ruling with regards to Kit Kat's famous shape.
It said that in order for Nestle, the chocolate bar's owner, to retain its trade mark for the shape (that is the four long bars on a rectangular base), it had to be distinctive enough that it was recognisable in every single member state of the European Union (EU).
The view of the ECJ was that Kit Kat was not as well known throughout the EU as it is here in the UK. As such, Nestlé's shape trade mark for its iconic UK chocolate bar may be removed from the trade mark register allowing for a plethora of copycat and own-label products.
This will be good news for competitors to Nestle such as the likes of Mondelez which owns Cadbury, Milka, Oreo and its own four finger chocolate bar originating from Norway called Kvikk Lunsj. What is interesting is that Mondelez also owns Toblerone which itself has a shape trade mark for its triangular pattern. How long, therefore, before someone claims that not everyone in the EU recognizes the Toblerone shape?
Generally, the ECJ decision now puts a high bar on successfully registering shape trade marks. How many, if any, brands are able to provide evidence sufficient to show that the shape of its product has distinctive enough character and is recognisable across all of the EU?