EU Court finds four-finger Kit Kat trademark not distinctive

Miikka Timonen,

In December of 2016, the EU General Court gave its decision in the Kit Kat four-fingered chocolate bar shape.  The EU General Court held that in order to obtain registration for a trademark which has acquired a distinctive character, the trademark applicant must prove that the relevant amount of people perceive the goods or services to be designated exclusively by sought trademark.

Kit Kat chocolate bar

The court emphasized that the fact that the relevant public has recognized the contested trademark by referring to another mark which designates the same goods and is used in conjunction with the contested trademark, does not mean that the contested trademark is not used as a means of identification. However, the Court confirmed that it was necessary to show whether the mark representing the shape of the product used of its packaging or of any reference to the word mark KIT KAT, serves to identify the product in question as being, without any possibility of confusion, the product known as ‘Kit Kat four-fingers’.

Read details about the Kit Kat case, and the confectionary industry here.

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