On 25 July, the European Court of Justice ("CJEU") has thrown out an appeal by Nestlé, which argued that it owns the shape of its famous treat KitKat. Nestlé, the world's largest food and beverage company, has spent more than a decade fighting to trademark the four-fingered wafer shape. However, EJC's most recent ruling could bring an end to the snack's protected European status.

Snacks, shapes and KitKat's trademark

The lengthy legal saga began in 2002, when Nestlé applied to register the 3D design at the EU's Intellectual Property Office ("EUIPO"). The trademark was registered in 2006 for goods including sweets, bakery products, pastries, biscuits, cakes and waffles. But, in 2007 it was contested by Cadbury Schweppes – a British multinational confectionery company wholly owned by Mondelez International since 2010. This triggered an 11 year legal battle through European courts.

Originally, the EUIPO rejected Mondelez's application, stating that the mark had gained distinctive character through its use in the EU. However, upon appeal from Mondelēz, the EU General Court annulled the EUIPO's decision. The court said that Nestlé had not established distinctive character for the mark in all of the EU – in particular, they did not provide evidence for Belgium, Ireland, Greece and Portugal.

Objections, appeals and annulments

All parties appealed against this decision at the CJEU. Nestlé and the EUIPO said the court was wrong to say that a trademark owner has to prove that a mark has acquired distinctive character through use in each of the member states separately. But, the CJEU dismissed all appeals, saying that the lower court had been right to annul the trademark.

"Therefore, the court upholds the General Court's judgment in which the latter held that the acquisition of distinctive character by a mark that was initially devoid of inherent distinctive character must be shown throughout the EU, and not only in a substantial part of the territory of the EU," the CJEU stated in a press release.

Other European snack companies also weren't allowed to trademark their products in the past. Lindt, the Swiss chocolate company, lost a case to trademark gold-wrapped chocolate bunnies in 2013. Also, last year Toblerone was also forced to prove that its triangular shape was distinctive enough to trademark when Poundland, British retailer, made an off-brand version - the case ended in an out-of-court settlement.​