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Time for KitKat copycats?

The European Court of Justice has thrown out an appeal by the chocolate bar’s maker, Nestlé, which argued that it owns the distinctive shape of the four-fingered snack.

The European court of justice (ECJ) upheld an earlier ruling that the KitKat bar was not well known enough throughout all EU member states to merit trademark protection. The ‘four trapezoidal bars aligned on a rectangular base’ – as the court describes the ‘KitKat four-fingers product’ – will not be entitled to protection from copycats.

Nestlé has spent more than a decade fighting to trademark the wafer shape – something that rival Cadbury has fought hard against.

“That this battle has been so drawn out demonstrates the huge value businesses see in obtaining trademarks for products with particular shapes,” says Asima Rana, director in intellectual property at DWF.

“The ruling is the latest blow to Nestle’s campaign to protect the shape of the KitKat, drawing to an end a long and costly legal dispute between Nestlé and Cadbury owner Mondelez, which has unfolded over a protracted ten-year period. It also affirms the great hurdle that businesses face in obtaining shape protection in the EU, as a business must be able to demonstrate that its shape is distinctive in each and every EU country.

“The power of having a registered shape trademark is that it can potentially protect the shape of a product forever and in doing so deter competitors from introducing similar rival products. This ruling could now open the door for supermarkets and rival chocolate companies to produce copy-cat KitKats, offering a cheaper alternative to the price-conscious consumer.”

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