Swiss food giant Nestle has failed to convince European judges that it has the right to trademark the shape of its four-finger KitKat bar in the UK.
The European Court of Justice said that Nestle had to demonstrate the public relied on the shape alone to identify the snack.
The judges concluded this was difficult to prove if goods also showed a brand name such as KitKat.
Rival Cadbury has battled to prevent Nestle obtaining the trademark.
Both Nestle and Cadbury said they were “pleased” with the ruling.
The case will now return to the UK High Court for a final decision.
Nestle claimed that in the 80 years since the chocolate bar was introduced, the four fingers have become almost completely associated with KitKats.
In June, a senior European court lawyer, the advocate-general, disagreed saying such a trademark did not comply with European law.
Nestle has not sought to trademark the two-fingered bar.
Today’s ruling is the latest development in a more than 10-year legal battle between Nestle and Cadbury, which started when Cadbury tried to trademark the purple color it uses on its Cadbury chocolate wrappers.
Nestle objected and finally had the original decision allowing Cadbury to trademark the color overturned in 2013.
Now it would appear Cadbury, which is owned by Mondelez International, has scored a significant but not final victory in the continuing chocolate war.
It has always argued the shape alone was not distinctive enough for consumers to associate it with the rival snack.
A bar called the Kvikk Lunsj, meaning “quick lunch”, launched in Norway in 1937 is available in some UK stores, and although less well known, looks similar to the four-finger KitKat.
A ruling in favor of Nestle would stop other confectionery producers making chocolate bars of the same shape or size.
A lawsuit brought by Hershey’s effectively bars the import of chocolates made in the UK by Cadbury.
Using the hashtag #boycotthershey, Cadbury products lovers called for a boycott of the American chocolate giant on Twitter and Facebook.
A protest petition on MoveOn.org had over 22,000 signatures by January 28.
The protest comes after Hershey’s, which holds a license to manufacture Cadbury chocolates in the US, agreed on a settlement with the New Jersey importer of Cadbury chocolates, Let’s Buy British (LBB).
Hershey’s accused LBB of infringing its brand trademark rights and importing British products that were not intended for sale in the US, The New York Times reported.
Last week, LBB agreed to stop shipments of any Cadbury products made in the UK to the US.
Many expat Brits insist that Cadbury chocolate tastes better (despite Cadbury being owned by U.S. food giant Kraft Foods’ snacks business Mondelez).
It is true that British and American chocolate are different in terms of constitution. To qualify as chocolate in the UK, a product must contain at least 20% cocoa solids; in the US, the minimum is 10%.
Cadbury products are not the only ones to fall fowl of Hershey’s lawsuit, with other brands. Switzerland’s Nestle also came under fire because they look like existing Hershey’s products.
Toffee Crisps, which are made by chocolate giant Nestle in the UK and are a favorite with the British public, have also been banned because their bright orange packaging resembles that of Hershey’s Peanut Butter Cups too closely.
Nestle’s Yorkie bars also face the chop as they sound too much like Hershey’s York Peppermint Patties. Maltesers also resemble a Hershey’s product of an almost identical name.
Hershey’s spokesman Jeff Beckman defended the company’s lawsuit and settlement, telling The New York Times last week that it was: “Important for Hershey to protect its trademark rights and to prevent consumers from being confused or misled when they see a product name or product package that is confusingly similar to a Hershey name or trade dress.”
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