Nestle has lost a long-running court battle to trademark the shape of its KitKat chocolate bar in the U.K. British high court ruling on Wednesday was the latest salvo in a legal battle between Nestle and Cadbury that has involved hearings in Britain and courts elsewhere in Europe.
The legal battle began when the Swiss food giant tried to register the trademark of the shape of four fingered chocolate bar in 2010. But Nestle's application was opposed by rival chocolate maker Cadbury. The case was previously dismissed by other courts including the European Court of Justice.
In Wednesday ruling reported by the Guardian, British judge Richard Arnold ruled that the four fingered shape of KitKat was not distinctive enough to merit a trademark. Justice Arnold referred the case to the European courts for clarification after beginning the high court hearing in 2014.
According to Sky News, Justice Arnold began deliberating on the chocolate makers battle in 2014, but he paused the case to allow judges in Europe to consider legal issue. Justice Arnold said aspects of European trademark law were "unclear" and he wanted clarification from the EU's Court of Justice before making a decision.
The judge said in his written ruling that Nestle had not promoted the chocolate bar's shape as one of its selling points and had distributed it in a wrapping that did not reveal its design. He added that consumers weren't likely to confuse similarly shaped foods with KitKat bars.
A Nestle spokesman told CBS News that the iconic shape of KitKat four finger bar has been used in the U.K. for more than 80 years and is well known by consumers. Therefore, he said, "We believe that the shape deserves to be protected as a trademark in the U.K. and are disappointed that the court did not agree on this occasion."
In the ruling, Justice Arnold said that it seems likely that consumers rely only on the word mark KitKat and the picture marks in relation to the goods in order to identify the trade origin of the products. He said that the consumers associate the shape with KitKat, but no more than that.
Cadbury owner Mondelez International said the company pleased by the U.K. High Court ruling. Mondelez said the ruling is in line with their contention the shape of the KitKat bar is not distinctive enough to be protected as a trademark.
Nestle said it would appeal against the judge's decision. The chocolate giant claimed the ruling opened the way for a rival to make a similar-shaped four-finger chocolate bar.
