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Does Kit Kat's Shape make a mark? EU. Adds a hurdle.



Nestlé's fight to protect the form took more than 15 years.

In 2002, Nestlé – with the exception of the US, where a subsidiary of Hershey manufactures it under license – applied for production rights for the Kit Kat to register the shape of the chocolate bar at the European Union Intellectual Property Office

In its application, Nestlé provided evidence that the mold was recognized as distinctive in most European countries, and in 2006 it was awarded a multi-form mark Categories of food

But British chocolate maker Cadbury ̵

1; now part of Mondelez International – quickly challenged this 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, which is sold under the Swiss chocolate brand Milka, is popular in Belgium.

The Intellectual Property Office dismissed Mondelez's appeal in 2012, but the company fought against the decision. It won its first victory in 2016 when the European Union court ordered the Intellectual Property Office to rethink the appeal.

Instead of deciding the matter, however, the 2016 decision was raging for all three parties. Nestlé, Mondelez and the Intellectual Property Office have each brought an action before the Court, each for a different reason.

On Wednesday, the Court ruled that the Intellectual Property Office must reconsider Mondelez's complaint, but Nestlé will allow it to hold on to this mark as this process progresses.

The only additional nuance, say experts, is that, in addition to demonstrating the acquired character, a company can provide proof of its acquired character in the European internal market as a whole or in the various product-oriented markets that make up the single market in all Member States

"National borders should not be the only reference point in the European Union," spokeswoman Gallagher said. [19659010]
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