The case was about whether the brand had become distinctive enough to deserve its trademark - that its shape alone was how people recognise the snack. The Luxembourg court found that Nestle had failed to show that consumers in enough EU countries recognized the shape as distinctive but also dismissed an appeal by Mondelez against some of the grounds for a lower EU court ruling in 2016 that had found the EUIPO was wrong to reject the U.S. firm’s complaint.  LUXEMBOURG (Reuters) - A long-running legal battle between global chocolate giants over the shape of KitKat finger wafers was sent back to the EU’s trademark office on Wednesday after judges dismissed appeals by both companies. The ruling by the European Court of Justice means the EU Intellectual Property Office (EUIPO) must review a 2012 decision to uphold Swiss-based Nestle’s (NESN.S) trademark on the shape of the four-finger chocolate-covered wafer biscuit over objections raised by Mondelez (MDLZ.O) of the United States.
– "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.)