The Norwegian bar has been made since 1937, a mere two years after Kit Kat – originally called Rowntree’s chocolate crisp – hit the market in 1935.<\/p>\n
For 65 years, the two crispy treats lived together in harmony – until Nestl\u00e9 went on the offensive.<\/p>\n
In 2002, the global chocolate giant applied for a trademark in Europe for Kit Kat. There was no issue with the bar itself, embossed with the Kit Kat logo.<\/p>\n
But it also applied for the trademark for the shape of a Kit Kat – or “four trapezoidal bars aligned on a rectangular base” as a top EU legal adviser put it.<\/p>\n <\/p>\n After four years of back-and-forth, the EU trademark granted Nestl\u00e9 the shape as a trademark.<\/p>\n The makers of Kvikk Lunsj, Mondelez, also owns brands including Cadbury, Milka, Oreo, and Toblerone – and Cadbury took issue with Nestl\u00e9’s new trademark.<\/p>\n Mondelez also makes the Leo bar – another four-fingered chocolate treat.<\/p>\n In 2007, the court battle began in earnest, see-sawing from one side to the other during appeal after appeal.<\/p>\n Wednesday’s ruling threw out Nestl\u00e9’s appeal, telling the EU trademark office it has to “reconsider” its decision – essentially annulling Kit Kat’s claim.<\/p>\n The case was about whether the brand had become distinctive enough to deserve its trademark – that its shape alone was how people recognise the snack.<\/p>\n In 2016, a lower EU court decided that Nestl\u00e9 had to prove a Kit Kat was recognisable in every EU country – and no evidence had been provided for Belgium, Ireland, Greece and Portugal.<\/p>\n And none of the parties involved – Mondelez, Nestl\u00e9, or the European trademark office – were happy about that.<\/p>\n <\/p>\n Nestl\u00e9 and the EU’s trademark office appealed against the 2016 decision. If proof of distinctiveness had to be shown for every single member state, they argued, no company could ever reach that high standard.<\/p>\n Mondelez, meanwhile, argued that it was wrong to conclude that Kit Kat had “distinctive character” anywhere – including countries like the UK, Germany and France.<\/p>\n The European court threw out all those objections.<\/p>\n The result is that the EU’s top court has now declared that it’s not enough to prove that a product has become iconic in “a significant part” of the EU – it has to be proven across all the markets of the bloc, not just some.<\/p>\n So the Kit Kat is set to lose its EU trademark. But there is still a fight to be fought on a national scale.<\/p>\n European status aside, chocolate is serious business for trademark lawyers on a country-by-country basis.<\/p>\n Nestl\u00e9 had been looking for Europe-wide protection for the Kit Kat shape, but there has also been an almost identical case in the UK.<\/p>\n That ended in a 16,000-word ruling that Kit Kat had “no inherent distinctiveness”.<\/p>\n Cadbury, meanwhile, lost its own trademark battle when it tried to register a shade of purple.<\/p>\n And, back in 2006, a case involving gold chocolate bunnies asked similar questions to the Kit Kat saga.<\/p>\n Swiss chocolatier Lindt applied for a trademark for its Easter bunnies with a red ribbon, which are iconic in many countries – but not all.<\/p>\n In Germany, the Riegelein company also made gold-wrapped bunnies, and the case made it to both European and German courts – where Lindt eventually lost.<\/p>\n And while Mondelez won the argument that you can’t trademark the shape of a Kit Kat, it’s sure you can trademark a Toblerone – which it owns.<\/p>\n Toblerone’s shape was registered in 1998 – but was only put to the test last year, when British retailer Poundland designed an off-brand version.<\/p>\n Featuring two rows of triangular bumps rather than one, Poundland argued that its copycat wasn’t a trademark infringement – especially since Toblerone had changed the shape of their UK product to reduce weight.<\/p>\n That disagreement was settled out of court.<\/p>\n Source: bbc.co.uk<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"![\"A](\"https:\/\/ichef.bbci.co.uk\/news\/624\/cpsprodpb\/1326F\/production\/_102674487_1d481d61-d8d5-4233-8307-5440a28d04d8.jpg\")
<\/span>![\"A](\"https:\/\/ichef.bbci.co.uk\/news\/624\/cpsprodpb\/1597F\/production\/_102674488_4671b0fb-9187-46eb-a58a-a6603b7a8448.jpg\")
<\/span>