Confectionery giant Nestle has failed to convince European judges that it has the right to trademark the shape of its four-finger KitKat bar in the UK. 
 
 The European Court of Justice said that the company had to demonstrate the public relied on the shape alone to identify the snack. 
 
 The judges concluded this was difficult to prove if goods also showed a brand name such as KitKat. 
 
 Rival Cadbury has battled to prevent Nestle obtaining the trademark. 
 
 Both Nestle and Cadbury said they were "pleased" with the ruling. 
 
 The case will now return to the UK High Court for a final decision. 
 
 Nestle claimed that in the 80 years since the chocolate bar was introduced, the four fingers have become almost completely associated with KitKats. 
 
 In June, a senior European court lawyer, the advocate-general, disagreed saying such a trademark did not comply with European law. 
 
 Nestle has not sought to trademark the two-fingered bar. 
 
 Sally Britton, intellectual property lawyer at Mishcon de Reya, said that Nestle was likely to continue arguing its case, "even if, as now appears likely, the English court decides that the KitKat shape should not be registered as a trade mark". 
 
 She said Nestle had experience of trying to register difficult marks. 
 
 It took more than 40 years for it to register the slogan "Have a Break" as a trade mark, finally succeeding in 2006, she added. 
 
 Image caption Norway's "Kvikk Lunsj" looks similar to the KitKat and is available in some parts of the UK 
 
 Chocolate wars 
 
 Wednesday's ruling is the latest development in a more than 10-year legal battle between Nestle and Cadbury, which started when Cadbury tried to trademark the purple colour it uses on its Cadbury chocolate wrappers. 
 
 Nestle objected and finally had the original decision allowing Cadbury to trademark the colour overturned in 2013. 
 
 Now it would appear Cadbury, which is owned by US company Mondelez International, has scored a significant but not final victory in the continuing chocolate war. 
 
 It has always argued the shape alone was not distinctive enough for consumers to associate it with the rival snack. 
 
 A bar called the Kvikk Lunsj, meaning "quick lunch", launched in Norway in 1937 is available in some UK shops, and although less well known, looks similar to the four-finger KitKat. 
 
 A ruling in favour of Nestle would stop other confectionery producers making chocolate bars of the same shape or size. ||||| SHARE THIS ARTICLE Share Tweet Post Email 
 
 Photographer: Jason Adlen/Bloomberg Photographer: Jason Adlen/Bloomberg 
 
 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. 
 
 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 judgment gave both sides an opportunity to claim victory. 
 
 The EU court decision will help guide a U.K. tribunal handling a clash between Cadbury, the U.K.’s biggest chocolate maker, and Nestle over the Swiss company’s 2010 application to trademark the four-fingered chocolate bar, which brought in 40 million pounds ($61.7 million) a year between 2008 and 2010 in the U.K. Cadbury separately is fighting an EU trademark Nestle got for the shape of its chocolate bar in 2006 in a case that’s been pending in a lower EU court since 2013. Any decision will determine whether or not the trademark is valid. 
 
 The KitKat was first sold in Britain in 1935 by Rowntree & Co., with the shape changing very little since then. Nestle, the world’s biggest food company, bought Rowntree Plc in 1998. 
 
 The U.K. Trade Marks Registry turned down the application to protect the shape of the chocolate bar in the U.K. in 2013 following the opposition from Cadbury. 
 
 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.” 
 
 Vevey, Switzerland-based Nestle said it was “pleased with the decision” and “now looks forward to the decision of the U.K. High Court.” Mondelez International Inc., which owns Cadbury, said in an e-mailed statement that the court’s ruling “is in line with our contention that the shape of the KitKat bar is not distinctive enough to be protected as a trademark.” 
 
 Nestle won a U.K. Court of Appeal ruling in October 2013 blocking Cadbury from obtaining a trademark for the color purple it uses to package its milk chocolate. 
 
 The case is: C-215/14, Societe de Produits Nestle SA v. Cadbury UK Ltd.
– "Four trapezoidal bars aligned on a rectangular base" may not be instantly recognizable. Put that setup in chocolate form, however, and many people would be able to distinguish it as a KitKat. Even if that's the case, the European Union's highest court just ruled that the shape of the sweet treat isn't unique enough to merit trademark protection, meaning other confectioners can potentially produce KitKat knockoffs, the Guardian reports. Nestle, which makes KitKats, has been fighting Cadbury (and then Mondelez, which ultimately bought Cadbury) in the courts for more than a decade on this issue. The BBC notes that Nestle first applied for trademark protection for the candy's shape in 2002, and it was granted that protection four years later. Cadbury's pushback began in 2007, and Wednesday's decision by the European Court of Justice essentially tells the EU trademark office it now has to "reconsider" its original decision. What that means, however, is that if the EU Intellectual Property Office finds, based on more recent evidence, that the KitKat bar's shape is recognizable in enough countries, it can retain the trademark protection, per Reuters. The brand name itself of "KitKat" is not being contested. (Atari accused Nestle of ripping off one of its popular video games in an ad for KitKat.)