Nestle has been locked in a fierce battle to register the shape of its four finger Kit Kat bar since its application was first blocked by rival Cadbury in 2013.
Following an appeal to the High Court the matter was passed on to the CJEU for recommendation, which today advised the application does not comply with EU law - a move that proves a blow for Nestle.
This 'war' is an attempt by both companies to monopolise certain aspects of the way they market their chocolate
The High Court in the UK will now make the final ruling. However, as the CJEU is a higher court, it is expected the High Court will follow the decision when it announces a final ruling in the next three to four months.
Lee Curtis, trade mark attorney and partner at intellectual property law firm HGF said that Nestle was attempting to register the shape to gain "monopoly rights" and "carve out the market" to prevent rivals cashing in on the shape of the popular bar.
He added the battle was also a game of historical "tit for tat" because Nestle blocked Cadbury's application to trademark the distinctive purple colour of its chocolate brand in 2014.
Curtis added that he expected Nestle would lose the case but that he might find himself "utterly surprised" if the court ruled in favour of Kit Kat.
Tit for tat
This is because whilst in the region of 90% of consumers associate the brand with the four-finger bar, Cadbury argues that it is not distinctive enough without the branding and logo to warrant a trademark.
"This is a further chapter in the 'tit for tat' legal trade mark war between Nestle and Cadbury following on from Nestle's successful challenge to Cadbury registering the colour purple for milk chocolate bars," he said.
"This 'war' is an attempt by both companies to monopolise certain aspects of the way they market their chocolate, whether that be a colour of a Dairy Milk bar or the shape of a Kit Kat bar."
Curtis added he expected Nestle would continue to use all weaponary in its arsenal to register the shape and that this would not "be the end of the story".
If successful, the chocolare brand could prevent rivals from innovating in this shape, renderering any other existing four-finger chocolate brands in infringement of copyright.
A spokesman for Nestle said: "Nestle will review the Advocate General's Opinion with interest and look forward to the full decision of the Court. Kit Kat is much loved and its unique shape, which has been used for 80 years, is well known by consumers".
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