Nestlé’s Kit Kat has a familiar form, but the company has lost another significant battle in its attempt to trademark that shape across the European Union—because it hasn’t proved that the shape is familiar to everyone as that of a Kit Kat.
Nestlé (NSRGY) got a three-dimensional trademark for its four-fingered, chocolate-and-wafer treat back in 2006—it applied for the trademark in 2002—but rival Cadbury Schweppes, which is now part of Mondelez (MDLZ), got the EU’s General Court to annul the trademark.
The General Court said in 2016 that Nestlé had not proven that the Kit Kat form was seen as distinctive across the entire EU. Specifically, the EU Intellectual Property Office (EUIPO,) which granted the trademark, had not first ruled that people in Belgium, Ireland, Greece and Portugal recognize the form as that of a Kit Kat.
On Wednesday, the Court of Justice of the European Union (the bloc’s top court) threw out the appeals of Nestlé and the EUIPO, saying the General Court had been right to annul the trademark decision. That means the EUIPO now needs to reassess Nestlé’s trademark application.
“We believe that the distinctive shape of our four finger KitKat deserves protection and, following today’s findings, the case will now be sent back to the EU Board of Appeal to examine the evidence that Nestlé has filed,” Nestlé said in a statement. “We think the evidence proves that the familiar shape of our iconic four finger Kit Kat is distinctive enough to be registered as an EU trademark.”
On the other hand, the Court of Justice also threw out an appeal against the General Court ruling from Mondelez, which wasn’t happy with the idea that Nestlé had proven Kit Kat’s distinctiveness in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden, and the U.K.
If you’re wondering why Mondelez has such an issue with the Kit Kat trademark, it’s because the company produces a Norwegian chocolate bar called Kvikk Lunsj, which first appeared in 1937. The Kit Kat bar is only barely older, having first been produced in 1935 as “Rowntree’s Chocolate Crisp”—it only adopted the “Kit Kat” name in 1937.
Mondelez has a complicated history when it comes to 3D chocolate trademarks. Last year it failed in a bid to challenge Ritter Sport’s four-by-four square chocolate bar exclusivity in Germany, but it also successfully defended the alpine shape of its Toblerone bar from being emulated by the U.K.’s Poundland chain.
This article was updated to include Nestlé’s statement.