The board of appeal confirmed Nestlé’s KitKat trade mark had acquired a distinctive character

The board of appeal confirmed Nestlé’s KitKat trade mark had acquired a distinctive character

Nestle has won an appeal to protect the unique shape of its KitKat chocolate bar in the European Union, overturning a previous ruling in favour of Kraft Foods-owned Cadbury.

A Nestle spokesperson said the firm is "delighted" to have defended its trademark on KitKat's shape at the appeals board of the EU's community trademark office (OHIM). It is the latest round in an ongoing tit-for-tat trademark dispute between Nestle and Cadbury.

An earlier decision by an OHIM panel annulled the trademark on 78-year-old KitKat's shape, which was registered in 2006. The panel agreed with Cadbury that the shape was not distinctive enough.

However, the OHIM appeals board swung back in Nestle's favour. KitKat is the first name that springs to mind when almost half of the EU's 500m-strong population see a four-fingered, three-dimensional chocolate bar, it said in its ruling, based on evidence from surveys across the 27-nation bloc.

"The board of appeal confirmed that Nestle’s above-mentioned trade mark had acquired a distinctive character through its long and intensive use in a substantial part of the EU," a Nestle spokesperson said today (3 January).

Additionally, the Board of Appeal confirmed that Nestle’s trade mark did not fall foul of the technical function exclusions in the trade mark legislation.

In October 2012, it was Cadbury's turn to celebrate victory in a legal battle with Nestlé, protecting its distinctive use of the colour purple on chocolate bars.