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The European Court of Justice today dismissed the appeal by Nestlé in its long-running battle with Cadbury over the shape of its KitKat chocolate bar.
The Court upheld the General Court’s judgment that the acquisition of distinctive character by a mark that was initially devoid of inherent distinctive character must be shown throughout the EU, and not only in a substantial part of the territory of the EU.
The EUIPO must now reconsider whether the three-dimensional shape of a ‘4 Finger KitKat’ can be retained as an EU trade mark.
A more detailed briefing on this decision and its implications for trade marks will follow.