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Food giant Nestle loses Kit Kat four finger EU appeal

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A recent decision by the European court of justice (ECJ) in Luxembourg means that the four finger Kit Kat chocolate and biscuit bar is set to lose its protected trademark status, opening up the likelihood of ‘copy-cat Kit Kat’s’ from rival manufacturers. The ECJ’s advocate general advised judges to throw out manufacturer Nestle’s appeal, and whilst the advocate generals advice is not binding, it’s very likely that it will be followed.

The appeal failed on the basis that for EU trademark protection to apply, the item in question must be distinctively recognisable across all EU states. Although Nestle provided evidence that the four finger Kit Kat was significantly recognisable in the UK, France, Germany, Spain, Italy, Denmark, The Netherlands, Austria, Finland and Sweden, this was not enough to maintain the protection.

Nestle revealed during the appeal that between 1996 and 2007, it had spent between £3m and £11m each year in Kit Kat promotion and advertising and that in the UK – one of its most popular markets – sales often exceed 40m a year. The EU decision also follows a similar one in the UK court of appeal removing the four finger Kit Kats UK specific trademark protection on the basis that the product had “no inherent distinctiveness”. A Nestle spokesperson said:

We believe his (the ECJ’s advocate general) final conclusion is based on incorrect factual findings. Nestle did submit sufficient evidence to prove acquired distinctiveness of its iconic KitKat four fingers shape to meet the advocate general’s proposed threshold, including in the few countries where evidence was challenged.”

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