Does Kit Kat’s Shape Deserve a Trademark? E.U. Adds a Hurdle.

By Milan Schreuer

Nestlé, which has global production rights to Kit Kat bars with the exception of the United States, applied in 2002 to trademark the shape of the candy bar in Europe.CreditMartin Cleaver/Associated Press

BRUSSELS — It was a good day for Kit Kat copycats.

Nestlé, which makes the candy bar outside the United States, could lose exclusive rights in the European Union to its four-fingered shape, the region’s highest court ruled on Wednesday.

The company has long argued that the Kit Kat’s four trapezoidal bars, linked by a rectangular base, had enough of a “distinctive character” that they deserved a trademark across Europe.

The European Court of Justice, however, told Nestlé that it had not presented evidence that shoppers in Belgium, Greece, Ireland or Portugal would recognize a Kit Kat by shape alone.

“The main takeaway of the Kit Kat decision,” said Rachel Wilkinson-Duffy, a senior trademark attorney at the global law firm Baker McKenzie, was that companies would find it more difficult to get protection across the bloc for “unconventional trade marks such as shapes.”

But Holly Gallagher, a press officer for the court, said that Nestlé still had options. “As a general rule, the shape of a product cannot be protected by an E.U. trademark,” she said.

“However, there is an exception, if a company or an individual can show that its product has acquired a distinctive shape so that consumers identify it without knowing its brand.”

The burden of proof, in that case, is on the party applying for the trademark, Ms. Gallagher explained. The applicant has to prove “acquired character” in all 28 European Union member states, or in the European single market as a whole.

(After Brexit, the number of countries will be 27 — but that may not help Nestlé, given that Britain is where Kit Kats were first sold.)

“We believe that the distinctive shape of our four-finger Kit Kat deserves protection,” said Peggy Diby, a senior spokeswoman for Nestlé, after the decision, adding that the case would go back to a board of appeals “to examine the evidence.”

Nestlé’s battle to trademark the shape has lasted more than 15 years.

In 2002, Nestlé — which has production rights to the Kit Kat everywhere except the United States, where a subsidiary of Hershey produces it under license — applied to register the candy bar’s shape at the European Union Intellectual Property Office.

As part of its application, Nestlé submitted evidence that the shape was recognized as distinctive in most European countries, and in 2006 it was granted a trademark on the shape covering several categories of food.

But the British chocolate maker Cadbury — now a part of Mondelez International — quickly appealed that decision. Mondelez subsidiaries offer similarly shaped products in several European markets: The Kvikk Lunsj, or “Quick Lunch” bar, is popular in Norway; and the Leo bar, sold under the Swiss chocolate brand Milka, is popular in Belgium.

The intellectual property office rejected Mondelez’s appeal in 2012, but the company fought the decision. It won a first victory in 2016, when the General Court of the European Union ordered the intellectual property office to reconsider the appeal.

Rather than settling the case, however, the 2016 decision infuriated all three parties. Nestlé, Mondelez and the intellectual property office all appealed at the Court of Justice, each for a different reason.

On Wednesday, the Court of Justice ruled that the intellectual property office must indeed reconsider Mondelez’s appeal, but Nestlé will be permitted to hold on to its trademark while that process goes ahead.

The only added nuance, experts say, is that apart from presenting proof of acquired character in all member states, a company can also bring proof of acquired character in the European single market as a whole, or in the different product-based markets that make up the single market.

“National borders should not be the only point of reference in the European Union,” Ms. Gallagher, the press officer, explained.