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Chocolate bar KitKat’s four “fingers” are not distinctive enough to give Nestlé sole ownership. With its statement, the European Court has now ended a long-standing legal battle between KitKat and Leo.
Leo and KitKat can both have four fingers
Other candy manufacturers will now be able to use the statement to create a similarly-shaped product, according to French paper Les Echos. Mondelez was waiting for this opportunity for about a decade: Nestlé’s patent from 2006, which granted it the four-fingered KitKat shape was a thorn in its Leo side.
Mondelez brought legal action against the patent, claiming the four fingers are not only part of KitKat and should also be applicable subsidiary Milka’s Leo cookie. In order to obtain sole ownership, Nestlé had to survey consumers and prove that these all associated the disputed shape with KitKat.
Not recognized in every country
Consumers in ten European countries, including France, Germany and the Netherlands, did indeed associate the shape with KitKat immediately, but that was not the case in several other countries: consumers in Belgium, Greece and Portugal (among others) did not immediately link it to Nestlé.
The Attorney-General says that that is not sufficient proof to grant European sole ownership, he writes in a recommendation to Nestlé. He advises the candy manufacturer to drop its claim: “Nestlé has been able to prove that the KitKat shape is distinctive enough for EU consumers, but only in several countries. That is why the shape cannot be protected, because a large part of European consumers do not perceive it that way.”
There has not been an official ruling yet, but the Court usually follows the Attorney-General’s recommendation.
