Europe’s top court has confirmed that the shape of Nestlé’s KitKat bar is not protected by trademark, leaving the four-fingered chocolate bar open to imitators after a long-running battle with rival Cadbury.

The European Court of Justice upheld its lower General Court decision to annul the Swiss company’s EU-wide trademark of the KitKat candy bar shape — dismissing the appeals filed by Nestlé and the European Union Intellectual Property Office against that 2016 ruling.

Nestlé originally obtained protection for the confectionery bar’s four-fingered shape when it was granted an EU-wide trademark by the EUIPO in 2006, based on public recognition of the bar’s distinctive form in ten EU markets — Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden, and the UK.

In 2007 rival Cadbury Schweppes, now part of the US foods group Mondelez International, demanded that the EU declare Nestlé’s trademark invalid. The company makes similarly shaped Leo and Kvikk Luns bars.

The EUIPO rejected Mondelez’s claim in 2012, only to have their decision annulled by the General court in 2016 on the grounds that, while the bar was distinctive in the 10 EU countries, the EUIPO should have considered the public’s perception of the shape in Belgium, Ireland, Greece and Portugal.

Nestlé and the EUIPO appealed against the decision in an attempt to reinstate the EU trademark, but were denied with the judges concluding that the distinctive character must be shown throughout the EU, and not only in a substantial part of the territory of the bloc.

Mondelez also appealed the 2016 judgment in an effort to challenge the General Court’s decision that the bar was distinctive in the 10 EU countries, but the judges rejected the company’s case.

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