Kit Kat chocolate covered wafer bars manufactured by Nestle. Picture by Hannah McKay for Reuters.

Nestlé could lose exclusive rights in the European Union for the four-fingered shape of its chocolate, the region’s highest court has ruled.

The company has long argued that the Kit Kat’s four trapezoidal bars, linked by a rectangular base, had enough of a “distinctive character” that they deserved a trademark across Europe.

The European Court of Justice, however, told Nestlé that it had not presented evidence that shoppers in Belgium, Greece, Ireland or Portugal would recognise a Kit Kat by shape alone.

Kit Kat can't trademark its chocolate shape in Europe. Pexels

Rachel Wilkinson-Duffy, a senior trademark attorney at the global law firm Baker McKenzie says: “The main takeaway of the Kit Kat decision was that companies would find it more difficult to get protection across the bloc for “unconventional trademarks such as shapes.”

But Holly Gallagher, a press officer for the court, says Nestlé still has options. “As a general rule, the shape of a product cannot be protected by an EU trademark."

“However, there is an exception, if a company or an individual can show that its product has acquired a distinctive shape so that consumers identify it without knowing its brand.”

In 2002, Nestlé — which has production rights to the Kit Kat everywhere including South Africa — applied to register the candy bar’s shape at the European Union Intellectual Property Office.

As part of its application, Nestlé submitted evidence that the shape was recognized as distinctive in most European countries, and in 2006 it was granted a trademark on the shape covering several categories of food.

But the British chocolate maker Cadbury — now a part of Mondelez International — quickly appealed that decision. Mondelez subsidiaries offer similarly shaped products in several European markets: The Kvikk Lunsj, or “Quick Lunch” bar, is popular in Norway; and the Leo bar, sold under the Swiss chocolate brand Milka, is popular in Belgium.

* The New York Times