Board of Appeal could not find that the three-dimensional Kitkat EU trade mark had acquired distinctive character through use without adjudicating on whether it had acquired such distinctive character in Belgium, Ireland, Greece and Portugal: it would be unreasonable to require (separate) proof for each individual Member State, the evidence submitted must however be capable of establishing such acquisition throughout all Member States of the EU, it is not inconceivable that the evidence provided is relevant with regard to several Member States, or even to the whole of the European Union.
Court of Justice of the European Union Press Release: "[...] The Court concludes that, although it is not necessary, for the purposes of registering a mark that was formerly devoid of distinctive character, that evidence of the acquisition by that mark of distinctive character through use be submitted in respect of each individual Member State, the evidence submitted must be capable of establishing such acquisition throughout the Member States of the EU in which that mark was devoid of inherent distinctive character. Therefore, the Court upholds the General Court’s judgment in which the latter held that the acquisition of distinctive character by a mark that was initially devoid of inherent distinctive character must be shown throughout the EU, and not only in a substantial part of the territory of the EU, and consequently, although such proof may be produced globally for all the Member States or groups of Member States, it is not, however, sufficient that the party with the burden of providing such evidence produces only evidence that fails to cover part of the EU, even a part consisting of only one Member State. It follows from the above that the General Court was right to annul EUIPO’s decision, in which EUIPO concluded that distinctive character had been acquired through use of the mark at issue without adjudicating on whether that mark had acquired such distinctive character in Belgium, Ireland, Greece and Portugal.
Read the full press release here.