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. 
 
 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. 
 
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 The outcome leaves open that the trademark agency could, while respecting the judges’ ruling, take account of other evidence — such as new proof the shape is distinctive to people in more countries — and might preserve protection for KitKat’s shape. The brand name “KitKat” is not at issue in the case. 
 
 Proceedings have been followed closely by trademark lawyers, who see implications for brands operating across the EU single market, where there are varying histories in national markets. 
 
 It has also at times featured in Britain’s Brexit debate, with some supporters of cutting ties with the EU suggesting that EU courts have failed to defend a much-loved British treat first marketed by Rowntree’s, which was bought by the Swiss in 1988. 
 
 In 2015, the Brexit-supporting Daily Express newspaper headlined a story on an earlier ruling: “End of the KitKat?”. It said an EU “diktat” might “spell the end of” the wafer bars as the “market could now be flooded with copycat confectionery”. 
 
 The case has also been mirrored by a dispute between the two multinationals in the British courts, where Nestle objected to a trademark for the purple color used by Cadbury, bought by the Americans in 2010, to wrap its Dairy Milk chocolate bars. ||||| Court of appeal rules against Nestlé in its protracted battle with Cadbury over whether format should be protected by law 
 
 It’s enough to make anyone need a sit-down with a cup of tea and a four-fingered chocolate wafer biscuit. 
 
 The confectionery multinational Nestlé has lost the latest round of its long-running battle with rivals Cadbury to trademark the shape of the KitKat bar in the UK. The court of appeal ruled that the four-finger design had “no inherent distinctiveness”. 
 
 After deliberating for months, the three appeals judges delivered their judgment on Wednesday in a 16,000-word ruling that found the KitKat shape was not a “badge of origin”. 
 
 “We are concerned here with ... the three-dimensional shape of a chocolate product, that has no inherent distinctiveness,” said Lord Justice Kitchin. 
 
 The ruling marks the latest stage in a bitter-tasting battle between Nestlé and Mondelēz, the US owner of Cadbury, that have been battling over the KitKat trademark for seven years. 
 
 Nestle’s appeal followed a UK high court ruling in January last year that blocked the trademark attempt. The European court of justice had previously found that the four-fingered shape, breaking apart with a snap, was not distinctive enough to merit a trademark and that such a designation would not comply with European law. 
 
 The ruling clears the way for competitors, including the major supermarkets as well as other confectioners, to produce their own copycat KitKats without fear of legal consequences. 
 
 But a Nestlé spokesperson indicated the Swiss firm was not necessarily prepared to give up, saying it was considering its next move. The company could potentially try to take the case to the UK supreme court. 
 
 “Nestlé is disappointed by the court of appeal judgment and is considering its next steps,” said the spokesperson. “KitKat is much loved around the world and its four-finger shape is well known by consumers. Nestlé’s four-finger shape has been granted trademark registration in many countries of the world, for instance Germany, France, Australia, South Africa and Canada, further protecting it from imitations.” 
 
 Following the appeal ruling, a Mondelēz spokesperson said: “As we have previously stated, we do not believe the shape of the KitKat bar should be protected as a trademark in the UK.” 
 
 The case turned on whether a the product’s shapewas sufficiently distinctive to the brand to prevent any other manufacturer using a similar format. Protected “shape marks” are not without precedent — Toblerone, which is owned by Mondelēz, has successfully trademarked its “zigzag prism” shape. 
 
 But the appeal judges found that while the four-finger shape might be “very well known” in association with KitKat, “that does not necessarily mean that the public have come to perceive the shape as a badge of origin such that they would rely upon it alone to identify the product as coming from a particular source. 
 
 “They might simply regard the shape as a characteristic of products of that kind or they might find it brings to mind the product and brand name with which they have become familiar. 
 
 “These kinds of recognition and association do not amount to distinctiveness for trademark purposes.” 
 
 The judges also noted that the chocolate bar’s shape had not been central to its marketing in recent years: “It has nothing, therefore, to do with the informed choices that consumers make between similar products.” 
 
 The judges heard that Nestlé had spent between £3m and £11m a year advertising and promoting KitKats between 1996 and 2007. More than 40m were sold in Britain in 2010. 
 
 “The appeal court’s ruling indicates that shape marks are going to be increasingly difficult to obtain,” said Guy Wilmot, partner who specialises in intellectual property law at Russell-Cooke. 
 
 “The court were ... concerned that if they granted the trade mark, Nestlé would have a potentially permanent monopoly on the four-finger shape, which they felt would be unfair given that KitKat had never used the shape alone to promote KitKats.” 
 
 Clare Jackman, an intellectual property lawyer at Norton Rose Fulbright, said the fact the two multinationals were prepared to battle through the courts for so long showed the value of what was at stake. 
 
 “Trademarks are very important and valuable business assets. They confer monopoly rights, so I can see entirely why Nestlé thought, ‘our four-finger bar KitKat has been around for ages, let’s register it, because we can stop anyone from producing a bar in four fingers’”, she said. 
 
 “It is typically brand owners in this space that will spend the money and push the boundaries, in trying to get as much protection as possible, because at the end of the day trademarks can potentially last forever, so it really is a signficant monopoly right.” 
 
 Asked if she could foresee a challenge in supreme court, Jackman said: “I’m not going to rule it out, because I think these are two brand owners who are prepared to push this as far as it can go.” 
 
 The four-fingered battle is not the only protracted legal disputes between the two confectioners. In 2004, Cadbury attempted to trademark the shade of purple it uses for its Dairy Milk bars, registering Pantone 2685C in a move that was initially successful before the court of appeal backed Nestlé challenge in 2013. An attempt last year by Cadbury to resurrect an earlier trademark on the colour was rejected by the high court. 
 
 The first KitKat-type bar was sold in Britain by Rowntree in 1935, when it was called Chocolate Crisp, and the shape has changed little since then. Nestlé acquired Rowntree in 1998. 
 
 Facebook Twitter Pinterest Freia’s rival Kvikk Lunsj bar is available in the UK as well as its native Norway. Photograph: Freia 
 
 A lookalike called Kvikk Lunsj, translated as “quick lunch”, launched in Norway in 1937 and is available in some UK shops. 
 
 • This article was amended on 18 May 2017. The judge’s ruling was not a “badge of origin”, a previous version said the judge’s ruling was not a “badge or origin”. ||||| 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.)