Nestlé has seen a setback as it failed to convince the EU's top court to let it trademark the shape of its four-fingered version of Kit Kat chocolate bar in the UK.
The European Court of Justice ruled that the Swiss food company had to prove that consumers would be able to identify the bar by its appearance and not without labels carrying the chocolate name.
It stated in the ruling: "The trade mark applicant must prove that the relevant class of persons perceive the goods or services designated exclusively by the mark applied for, as opposed to any other mark which might also be present, as originating from a particular company."
The case has been referred back to the UK High Court, which dismissed the application two years ago after an appeal was filed by Nestlé 's competitor Cadbury.
The EU court in a statement said: "It is up to the British courts to decide, on the basis of this response, if the form of Kit Kat chocolate bars can be registered as a trademark or not."
Nestlé claimed that the shape of the bar was unique. The bar was first sold in 1935 and is marketed with a tagline: "Have a Break, Have a Kit Kat".
Nestlé filed a trademark application in 2010 and a year later Cadbury appealed.
If the British high court also rules against Nestlé, it could pave way for other confectioners to roll out similarly shaped products.
Nestlé and Cadbury have been in battle over the distinctiveness of their confectionery products. Nestlé had tried to block Cadbury's trademark for purple shade used in its packages.
Image: Nestlé fails to convince European Court to let it trademark the shape of KitKat. Photo: Courtesy of Dornum72/Wikipedia
