The European Court of Justice (ECJ) has thrown out Nestlé’s appeal to trademark the shape of its famous four-fingered chocolate bar.

In 2006 Nestlé was granted an EU-wide trademark, by the European Union’s Intellectual Property Office, for the shape of their four-fingered chocolate bar. However, in 2007 Cadbury owner, Mondelez, began a decade-long court battle with Nestlé to remove the trademark on the grounds that the shape was not solely attributable to the Kit Kat brand.

Nestlé have continuously argued that even without its famous red and white packaging the four-fingered chocolate bar is instantly identifiable, and the shape alone is distinctive enough to be trademarked. Mondelez dispute this claim and argue that the four-fingered shape is not universally recognised across the whole of Europe, and a trademark should not be granted for a shape which is utilised by numerous other chocolate bars.

The General Court, in 2016, held that for a trademark to be granted Nestlé must demonstrate that the shape of the product has become iconic in not just "a significant part” of the EU, but across all EU member states.

In today’s judgement, the ECJ followed the reasoning of the General Court and held that although evidence has been provided that the shape is distinctive in ten member states, Nestlé had failed to demonstrate that customers across the whole of the EU solely associate the shape with the Kit Kat brand. The ECJ has therefore dismissed Nestlé’s appeal and held that the four-fingered shape lacked the distinctiveness that was required for an EU-wide trademark to be granted.

This ruling has affirmed the high threshold of distinctiveness which must be satisfied prior to the grant of an EU trademark, especially in cases which involve the shape of a product.

At Myerson, our expert Dispute Resolution team can advise on claims such as trademark infringement and other types of intellectual property claims such as breach of copyright, design rights and patents. Our expert Corporate Commercial team can advise on non-contentious aspects of intellectual property so you can consider how best to protect your rights. If you would like to speak to one of our specialist IP solicitors, please contact us on 0161 941 4000 or email us at lawyers@myerson.co.uk.