Nestle fails to trademark Kit Kat's 'four finger' shape

kit kat fingers
KitKat bars have been made in Britain in 1935 and owner Nestle wanted to trademark its four finger shape

When it comes to the shape of the Kit Kat chocolate bar, courts in Europe continue to tell Nestle (NSRGF): Give me a break.

Britain's High Court on Wednesday again refused to allow Nestle to trademark the "shape of a four finger chocolate-coated wafer," better known as the Kit Kat bar.

Rivals such as Cadbury, owned by Mondelez (MDLZ), want to produce a similar bar. The two companies have gone to court in London and in the European Court of Justice. Nestle has failed since 2010 to trademark the shape in the U.K.

Nestle said it will appeal the latest ruling. "We believe that the shape deserves to be protected as a trademark," a spokesperson said in a statement.

A Mondelez spokesperson said the latest ruling "is in line with our contention that the shape of the Kit Kat bar is not distinctive enough to be protected as a trademark."

The four finger KitKat bars have been made in Britain since 1935. The advertising slogan used to market the chocolate is: "Have a Break, Have a Kit Kat."

Hershey (HSY) makes the Kit Kat for the U.S. market.

Related: Hershey lawsuit angers fans of British chocolate in the U.S.

Sharon Daboul, a trademark attorney at EIP, said trademarking the shape of the Kit Kat would have given Nestle "a valuable monopoly and competitive advantage over other confectionery manufacturers, which is one of the reasons why Cadbury has been keen to stop them." Daboul was not involved with the case.

The two chocolate rivals have fought over trademarks in the past. Nestle used the courts to stop Cadbury from trademarking its particular shade of purple color.

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