It is pretty unusual for the Court of Justice of the European Union to issue press releases in relation to any of the hundreds of trade mark cases passing through their doors each year but the ongoing battles relating to the shape of the four finger Kit Kat have attracted sufficient interest to make these cases newsworthy.

The latest chapter in the saga was published yesterday https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-04/cp180050en.pdf

and the Advocate General recommends that the Court should, in its eventual decision, push the case back down to the EUIPO to reconsider the question of whether this 3 dimensional shape can be registered as a trade mark.

One might wonder why this humble chocolate bar has been the subject of such a fight, between Nestlé and Cadbury (now Mondelez) when the shape of the Toblerone bar has been registered for ages. However, the shape of the Toberlone bar does differ more significantly from the shape of conventional chocolate bars than is the case for the 4 finger Kit Kat and Toblerlone occupies a very distinct space in the market. This is probably why competitors in the highly competitive confectionery market haven’t felt brave enough to challenge the registration for the shape of the Toblerone.

This is by far from the end of the story for this battle, and so we are unlikely to see a rush of competing 4 finger chocolate wafer products any time soon. Some might wonder why Nestlé continue to fight this case, when there is so much more to the Kit Kat brand than the shape of the bar itself, but the confectionery companies compete extremely robustly on the playing field of trade marks. It is not so long ago that Nestlé successfully challenged Cadbury’s applications to register the colour purple as a trade mark, so it is most unlikely that Nestlé would ever back down on this matter, at least not until all appeal routes had been exhausted.