Editor's note: recently, The European Court of Justice against Nestle and Cadbury (Now Mondelez) about "Kit Kat Whether the three-dimensional logo belongs to the shape produced by the nature of chocolate products" The long-running dispute was decided, Where for "The trademark is distinguished by its use" Judgment of question, It has aroused widespread concern in the industry. Read on for more details!

recently, European Court of Justice (Court of Justice of the European Union) Nestle and Cadbury (Now Mondelez) about "Kit Kat Whether the three-dimensional logo belongs to the shape produced by the nature of chocolate products" The long-running dispute was decided, Where for "The trademark is distinguished by its use" Judgment of question, It has aroused widespread concern in the industry. Brief of case: The disputed trademark application was first rejected in Britain, Then the European Court of Justice on 2015 years 9 month 16 Daily adjustment C-215/14 Preliminary determination. Contrary to most people's predictions, The European Court of Justice ruled that it did not recommend that Britain's high Court grant a judgment in favour of Nestle's controversial logo registration. On the contrary, Arnold The judge 2016 years 1 month 20 The decision of the day explained, Most of the people surveyed agreed Kit Kat The association between a chocolate bar and the shape of a candy product, It is not sufficient to determine that the shape mark has achieved the distinguishing features required for a trademark. The judge held that, It needs to be demonstrated that the consumer can identify the product as originating from a particular producer by the mere presence of this mark, Not to be confused with any other sign. Therefore, The final ruling rejected the British trademark application. On the other hand, Nestle in 2006 A surname Kit Kat The three-dimensional shape of chocolate bar is registered as an EU three-dimensional trademark. The second year, Cadbury (Now Mondelez) On the grounds that the EU trademark lacks distinguishing features, Invalid application to EU Intellectual Property Office. The Appeal Committee of the European Intellectual Property Office concluded after review, Although the controversial logo did not initially have distinctive features, But Nestle has testified that the logo has been used to achieve distinctive features. 2016 years 12 month 15 day, Eu general court (General Court) The decision of the appeal Board was annulled, That the appeal board's findings could not be justified in parts of the EU (Specifically, it means, Belgium, Ireland, Countries like Greece and Portugal) It has also achieved remarkable features. The nature of the dispute in this case, Require proof of the geographical scope of the use to achieve significant features. Nestle and the European Intellectual Property Office insist, The evidence submitted is sufficient to demonstrate that the symbol in question has achieved a distinctive character through its use in most parts of the European Union, The General Court of Justice of the European Union considers it necessary to prove that the mark in dispute has achieved significant features in all areas of the European Union, It is not enough to demonstrate that significant characteristics have been achieved in most or most EU areas. The case was eventually appealed to the European Court of Justice. 2018 years 7 month 25 day, The European Court of Justice makes the final decision (Case number: C-84/17 P, C-85/17 P and C-95/17 P) , The decision of the General Court of the European Union was upheld. The European Court of Justice ruled that, "Eu trade mark regulation" The first 7. 3 Bar requirement, Provide evidence of an initiation (ab initio) Signs that do not have distinctive features subsequently acquire distinctive features within the EU domain. As a result of the dispute in this case, the scope of the logo involves the whole European Union area, Therefore, The evidence provided should have the power to prove the whole EU area; The evidence only covers the vast majority of EU areas that do not meet the requirements of the regulation. European court of justice clarification, There is no requirement for each EU member State area to submit a separate piece of evidence, A single piece of evidence can cover the market within several member States. but, Whether giving evidence separately or in combination, The final effect must cover all areas of the EU. Therefore, The appeal panel did not decide whether Nestle's trademark was in Belgium, Ireland, Greece and Portugal have also been identified with notable features, Error of law. The European Court's decision sets a high bar for proof. It should be noted, Both the EU Intellectual Property Office and the EU General Court found that Nestle had provided evidence that the mark in question was at least 10 Eu member states have achieved remarkable characteristics, Including the largest member states in the field (Germany, Spain, France, Italy and England) . Therefore, For similar disputes in the future, If the EU trademark owner still wishes to quote "Use to achieve distinctive features" To counter invalid applications and maintain the validity of registered trademarks, It should be prepared for the possibility of costly and protracted evidence gathering procedures.

compile: Liu Dan, Esabarry Legal Counsel source: Esabaril (ELZABURU)