Nestle SA may find it harder to convince U.K. judges that the shape of its KitKat chocolate bar is distinct enough to trademark after the European Union’s top tribunal set strict limits on what qualifies for the status.In 2010 Nestle applied for a patent for its four-fingered chocolate bar that brings in $60 million a year. Kit Kat was created in Britain in the 1930s, but purchased by Nestle in 1998. Now, it looks as though the Euro Court has given a UK tribunal the okay to deny Nestle its patent.
For a shape to deserve a trademark, owners must prove that consumers can recognize the product exclusively by that characteristic, and not in combination with another trademarked aspect, the EU Court of Justice said in a ruling Wednesday.
The EU court Wednesday said trademark protection can’t be given if a shape “contains three essential features, one of which results from the nature of the goods themselves and two of which are necessary to obtain a technical result.”If it doesn't melt first.