The bar is low when it comes to legal battles between chocolate makers Cadbury and Nestle SA.
After Nestle blocked Cadbury’s bid to trademark the color purple used for its chocolate wrappers, the U.K. unit of Mondelez International Inc. has turned the tables on its Swiss rival, opposing a similar attempt by Nestle to protect the shape of its KitKat bar.
Judges at the European Union Court of Justice in Luxembourg grappled with the latest dispute at a hearing on Thursday.
“This is not a serious case about monopolizing shapes at all,” it is about a chocolate bar that is “highly recognizable and much loved in the U.K.,” Nestle’s lawyer Simon Malynicz told the EU judges.
Cadbury, the U.K.’s biggest chocolate maker, is fighting Nestle’s 2010 application to trademark the four-fingered chocolate, which sold 40 million pounds ($61.4 million) worth of bars a year between 2008 and 2010 in the U.K., according to the tribunal which sought the EU court’s guidance last year.
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 chocolate bar in the U.K. in 2013 following the opposition from Cadbury.
If the EU court backed Nestle’s position, it “would open the floodgates to the registration of marks lacking the essential function of a trademark,” Thomas Mitcheson, a lawyer for Cadbury, told the EU judges.
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.
Mondelez, which also makes Oreo cookies, was created in a split of Kraft Foods Group Inc. in 2012. Deerfield, Illinois-based Mondelez had an 18.3 percent share of the western European chocolate confectionery market in 2013, according to Bloomberg Industries data.
“These cases have to be understood in the context of a long tradition in the U.K. of refusing registration to all shape trademarks, no matter how distinctive they have become,” said Malynicz.
The case is: C-215/14, Societe de Produits Nestle SA v. Cadbury UK Ltd.