All TM followers will now, we presume, have eaten about as much as they can possibly stomach on the Kit Kat story.
If it has bypassed you we suggest a quick read of the UK Guardian newspaper to get the basics.
KitKat does not merit trademark protection, EU court rules
Decade-long legal fight ends with ruling that chocolate bar should not get protected status
It is a question that has been debated by some of Europe’s finest legal minds for years: is there anything unique about a KitKat?
A verdict came on Wednesday when Europe’s highest court ruled KitKat’s four-fingered chocolate bar did not merit protected status in the EU.
Choc horror: four-fingered KitKat set to lose protected EU status
The European court of justice (ECJ) upheld an earlier ruling that the KitKat bar was not well known enough throughout all EU member states to merit trademark protection. The “four trapezoidal bars aligned on a rectangular base” – as the court describes the “KitKat four-fingers product” – will not be entitled to protection from copycats.
The ruling is a major blow to Nestlé, the manufacturer of the bar, which has spent 11 years embroiled in a costly legal challenge in European courts.
But it may leave a bitter taste for the food conglomerate Mondelēz, the owner of Cadbury, which led the legal challenge. While the company secured a victory, some of its legal arguments were rejected.
The decision not to protect KitKat was expected after a senior jurist at the ECJ ruled in April that the bar did not deserve a pan-European trademark because it was not well known in all EU member states.
The advocate general, whose advice is usually followed, had concluded that KitKat was not sufficiently well known in Belgium, Ireland, Greece and Portugal, although it was established in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland and Sweden.
There was a similar case in the UK, which ended in a 16,000-word ruling that found KitKat had “no inherent distinctiveness”.
The ruling caps a costly legal saga that began in 2002, when KitKat applied for protection of its design at the EU’s intellectual property office. Protected status was granted, but was contested by Cadbury Schweppes in 2007, triggering an 11-year legal battle through European courts. Mondelēz took up the case after Cadbury was bought by its predecessor Kraft.
In a statement, the ECJ said previous judges had been “right to annul EU IPO’s decision” that KitKat had acquired a distinctive character.
The EU’s general court “did not err in law” when it found special status could only be granted when the design feature was associated with one brand throughout EU territory “and not only in a substantial part”, the judgment said.
The judges chose not to award costs to either company, so both will have to pay their own legal bills, which were undisclosed.
The EU IPO, which went to court in defence of its original decision, has also been ordered to pay its own costs, as has a trademark association that supported Nestlé.