4 Finger KITKAT bar a valid EU trademark?

2 August 2018

When filing an application to register the 4 Finger KITKAT bar as a EU trademark in 2002, Nestlé had proven acquired distinctiveness of the shape of the bar in only part of the EU. Following an invalidity action filed by Mondelez and after many years of legal battle, the Court of Justice of the European Union upholds the judgment of the General Court that in order to be registered as a EU trademark, a sign must have acquired distinctive character throughout the whole of the EU.

Read the decision here.

However, this does not mean that an applicant will have to furnish proof of acquired distinctiveness for each separate Member State.  It is possible, for instance in case of a cross border market, that evidence relating to one Member State, covers other Member States as well.

The final assessment of the validity of the KITKAT shape mark is now left to the EUIPO. That authority will now have to reconsider the evidence submitted by Nestlé.

In this case Nestlé was represented by Gregor Vos.