Nestlé loses case in the EU Court of Justice regarding Kit Kat-chocolate bar
The food manufacturer Nestlé has recently tried to obtain international trademark rights to the characteristic shape of their well-known product, the Kit Kat bar. The product represents a bar, consisting of four oblong, connected pieces of biscuits covered with chocolate, which can easily be separated.
The attempt to obtain trademark rights however failed, since the EU Court of Justice did not approve the application due to the fact, that the form of the bar did not have a sufficiently distinctive character to be recognized among other products.
The EU Court of Justice reached their decision although the shape of the Kit Kat bar had reached status of distinctiveness in Denmark and nine other European countries, among others France and Sweden. Nestlé argued that the characteristic shape has been associated with the company since 1935, which should be enough to let Nestlé obtain the desired trademark rights – but the court disagreed.
According to the Danish Trade Marks Act § 1, persons and companies can obtain monopoly of trademarks, which is also known as “trademark right”. Trademarks are described as special characteristics of products or services that are used or are intended to be used in business.
According to § 2 in the Danish Trade Marks Act, a trademark can be represented as all kinds of signs that are qualified to distinguish the products of a company from others. It is also a condition, that the sign can be reproduced graphically.
The purpose of a trademark is to create a special connection between the company and its products, which is also described as “commercial value of origin”.
A trademark can thus not only be composed of logos or words, but also sounds, special shapes etc. In the present case with the Kit Kat bar, Nestlé applied for protection of the shape of the chocolate bar. Before a shape can be registered as a trademark, it is a necessity that the shape has distinctive character, which however is not a test of novelty or a requirement of originality. For this reason, a trademark can have distinctive character, even though it is not created by the lawful holder.
In Denmark, the Supreme Court has concluded, that the square shape of the Ritter Sport-bars could not obtain trademark rights, because the square shape, according to the Supreme Court, did not have enough distinctive character. Exactly this requirement of distinctiveness was not satisfied in the Kit Kat-case either, why Nestlé once again had to return home from the EU Court of Justice disappointed. It is not the first time Nestlé has tried to obtain the trademark rights to their delicious chocolate bar; last time was in 2013, where the competitive company Cadbury, prevented the registration.