Source: www.europa.eu
"Have a break...Have a Kit Kat!" is one of the most loved
tagline by individuals of every age group. The news of Toblerone changing its
shape came as a surprise for chocolate lovers and the global chocolate
industry. Recently, another shocking news that is getting limelight is that KITKAT
four-fingered shape might not get the trademark protection in the European
Union.
The senior adviser to the European Court
of Justice held the four-fingered shape of the chocolate was not recognizable
enough by the customers. It does not have the distinctive quality necessary for
trademark protection. The story began in 2006, when a trademark protection was
granted by the European Union Intellectual Property Office for the
“three-dimensional shape” of the four-fingered KitKat to Nestlé. This
registration was later challenged by Cadbury, which was rejected by the
European Union Intellectual Property Office reasoning that the shape of the
chocolate was not ‘distinctive’ enough. The first blow for Nestle came in 2016
when the General Court while deciding the appeal in the same case, cancelled
the registration of Nestle. The decision was later appealed to the European
Court of Justice (ECJ) by both Nestlé and the EU agency. However, recently the Advocate
General Melchior Wathelet in an opinion handed down to the ECJ has favored
Cadbury and recommended that ECJ judges should dismiss the appeals and uphold
the decision to annul the trademark.[1] Mr
Wathelet argued Nestle doesn’t have “sufficient” evidence to show its trademark
had acquired distinctive character and the lower General Court’s findings to be
“manifestly inadmissible” because Mondelez’s (the company which now owns
Cadbury) overall complaint against the Nestle trademark had been successful.[2]
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