“Four trapezoidal bars aligned on a rectangular base.”
These are the eight words at the heart of a 16-year legal battle between Nestlé and the courts of the UK and EU over the shape of a Kit Kat.
The makers of the hugely popular chocolate and wafer treat argue its design is “iconic” and deserves protection.
But not everyone agrees and today the European Court of Justice (ECJ) ruled a Europe-wide trademark for Kit Kats should be annulled.
The saga began in 2002 when Nestlé applied for the trademark on the Kit Kat shape – “four trapezoidal bars aligned on a rectangular base”.
After a four-year tussle it was granted, but the decision provoked protests from manufacturers of similar-looking snacks, most notably Cadbury-owned Mondelez, makers of Kvikk Lunsj, a Norwegian favourite that looks like – you guessed it – four trapezoidal bars aligned on a rectangular base.
Since 2007 the legal battle has been in and out of the courts, culminating in 2016 when Nestlé was told in order to keep its trademark it had to prove Kit Kats were recognisably distinct in every single country in the European Union.
The company attempted to prove just that, but no evidence could be provided for Belgium, Ireland, Greece, and Portugal.
This prompted Nestlé to appeal the burden of proof and today’s decision by the ECJ denied it.
The ECJ found that the General Court was right to annul the European Union Intellectual Property Office’s (EUIPO) 2006 decision that “distinctive character had been acquired” without “adjudicating on whether that mark had acquired such distinctive character in Belgium, Ireland, Greece and Portugal”.
It said: “On the basis of those considerations, the Court dismisses the appeals of Nestle and EUIPO.”
Nestle has not sought such a status for its two-finger bar.
It follows a decision by appeal judges in the UK in favour of stripping Kit Kat of its UK-only trademark on the basis that the three-dimensional shape of a chocolate product had “no inherent distinctiveness”.
The appeal court heard then that Nestle had spent between £3 million and £11 million a year advertising and promoting Kit Kats between 1996 and 2007.
More than 40 million were sold in Britain in 2010.
Mondelez International, previously known as Cadbury Schweppes, filed the original challenge to the EU trademark in 2007, a year after it had been granted.
Duelling between the two companies has also seen Nestle challenge Mondelez’s British trademark for the shade of purple wrapper on its Cadbury’s Daily Milk chocolate bars.
Toblerone, which is owned by Mondelez, has successfully trademarked its ‘zigzag prism’ shape.