The Court of Justice of the European Union (CJEU) ordered the European Union Intellectual Property Office (EUIPO) to reconsider whether?Nestlé’s 3D four-finger KitKat shape can be registered as an EU trademark on July, 25. ?
Nestlé applied to register the 3D design at the EUIPO in 2002. The mark was registered in 2006 for goods including sweets, bakery products, pastries, biscuits, cakes and waffles.
However,?Mondelēz UK?(then known as Cadbury Schweppes) filed an application to declare the trademark invalid the following year, in 2007.
The EUIPO rejected this application, on the grounds that the mark had gained distinctive character through its use in the EU.
Upon appeal from Mondelēz, the EU General Court annulled the EUIPO’s decision. The court said that Nestlé had not established distinctive character for the mark in all of the EU. In particular, Nestlé did not provide evidence for Belgium, Ireland, Greece and Portugal.
All parties appealed against this decision at the CJEU, with Nestlé’s and the EUIPO’s appeal combined.
According to the CJEU, the General Court was right to annul the EUIPO’s decision based on the fact that no evidence was provided on the 3D mark’s distinctive character in Belgium, Ireland, Greece and Portugal.
Court’s judgment is in line with an advocate-general (AG)’s opinion in the case.
Source: WIPR