Who,will Win the KitKat War, Nestle or Mondelez?
For more than ten years, the Swiss Nestlé has been in dispute with Mondelez over the shape of its chocolate bars.
The European Court of Justice last Wednesday ruled a new decision in the legal battle between Swiss Nestle, owner of the KitKat brand, and the American Mondelez, which owns the chocolatier Cadbury. A decision that is part of a judicial war that has lasted more than ten years.
At the root of the litigation lies the opposition between the KitKat and Cadbury marks. The latter makes a Norwegian bar of similar shape, called “Kvikk Lunsj” (Quick Lunch). In 2006, the European Union Intellectual Property Office (EUIPO) agreed to register the KitKat four-fingered form as the EU mark for Nestlé. But the decision of the CJEU is changing the situation.
The Luxembourg-based Court refers the case to its starting point as it asks the EU Office for Intellectual Property (EUIPO) “to reconsider whether the three-dimensional shape corresponding to the KitKat 4-bar product can be maintained as a mark of the Union “. This decision follows a survey conducted by the CJEU in 14 EU countries in which Nestlé markets its KitKat bars. While it has been established that the four-finger mark has acquired distinctiveness through use in 10 of the 14 countries, this is not the case in Belgium, Ireland, Greece and Portugal.
Asked by Le Figaro, Vanessa Bouchara, a lawyer specializing in intellectual property law, recalled that “this conflict between Nestlé Mondelez for illicit recovery of the shape of the bar KitKat 4 bar bars is not over yet. The EU has asked that the case be re-examined by the EU Trademark Office, we now have to wait for the decision that the latter will take “.
It is indeed up to UEIPO to look back on the issue because of the four countries, where consumers have not recognized the “four fingers” as emblematic of KitKat. However, Nestlé has not lost the war yet, KitKat brand remaining registered for the moment.