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Nestlé wins trademark case over Kit Kat shape after Cadbury row

By Oliver Nieburg+

03-Jan-2013
Last updated on 03-Jan-2013 at 12:00 GMT

Nestlé may have stopped rivals producing products in the shape of its four-finger Kit Kat after an earlier decision blocking its trademark was overturned on appeal following a dispute with Cadbury.

Nestlé sought to register an EU community trademark for the shape of Kit Kat four-finger in 2002 to prevent imitations from rivals.

3D –shape trademark

The Office of Harmonization for the Internal Market (OHIM), which registers EU Community Trade Marks, allowed its application for sweets, bakery products, biscuits, cakes and waffles in 2006, but said it lacked distinctiveness in relation to chocolate, candy and confectionery.

A few years later Cadbury disputed Nestlé’s trademark to the Cancellation Committee as the mark was for a 3D-shape rather than a name.

The Cancellation Committee declared the trademark invalid.

Nestlé appealed that decision, which was granted a few weeks ago. See HERE.

OHIM Board of Appeals said in a recent ruling that while the Cancellation Committee was right that the trademark lacked distinctiveness, it had acquired distinctiveness through use and consumers in the EU were now deemed to associate the shape to Nestlé’s Kit Kat.

Cadbury, now owned by Kraft Foods spin-off Mondelez International, was ordered to pay the costs of the appeal.

Nestlé said in a statement that it was “delighted” with the decision.

Other wrangling

Cadbury and Nestlé were previously locked in another trademark dispute last year – this time over the color purple – a dispute Cadbury claimed to have won. See HERE.

The latest decision by OHIM on the Kit Kat shape runs contrary to a ruling last year by the European Court of Justice, which said that Lindt could not register a 3D trademark for the shape of a bunny.

Lindt is currently in another legal battle in Germany courts with Haribo which is set to rumble all the way to the German Supreme Court.

The case rests upon whether Lindt’s 3D-shape for its Gold Teddy infringes Haribo’s trademark for a registered brand/word (Haribo "Goldbär").

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