From the press release: "According to Advocate General Wathelet, EUIPO must re-examine whether the three-dimensional shape of the ‘Kit Kat 4 fingers’ product may be maintained as an EU trade mark. He proposes that the appeals brought by Nestlé, EUIPO and Mondelez be dismissed and states that Nestle did not adduce sufficient evidence to show that its trade mark had acquired distinctive character.
The Advocate General notes that, by its judgment, the General Court annulled the decision taken by EUIPO. As EUIPO explained at the hearing, that annulment implies that, in the absence of an appeal and given the reasoning and the operative part of the judgment of the General Court, EUIPO would have been obliged to declare the trade mark at issue invalid, since that declaration of invalidity was essentially the aim of Mondelez’s application to EUIPO. Consequently, Mondelez cannot be considered to have been unsuccessful, in whole or in part, in its claims submitted before the General Court. Moreover, contrary to what is required by Article 169(1) of the Rules of Procedure of the Court of Justice, Mondelez’s appeal does not seek to have set aside, in whole or in part, the operative part of the judgment under appeal, but to have set aside some of the grounds of that judgment.
In that regard the Advocate General considers that evidence adduced for some national markets might suffice to cover other markets for which (quantitatively sufficient) evidence has not been adduced. That does not mean that the absence of evidence in relation to one Member State alone would be sufficient to exclude the acquisition of distinctive character throughout the EU. However, a trade mark does not have a unitary character and cannot therefore be registered as an EU trade mark if the relevant public in part of the European Union does not perceive it as an indication of the commercial origin of the goods or services which it covers.
[T]he Advocate General notes that Nestlé confirmed, at the hearing, that it had not included in the case file evidence seeking to establish that the evidence provided for the Danish, German, Spanish, French, Italian, Netherlands, Austrian, Finnish, Swedish and UK markets also applied to the Belgian, Irish, Greek, Luxembourg and Portuguese markets or could act as a basis for extrapolating the acquisition, by the trade mark at issue, of distinctive character through use in those five countries. In the absence of such evidence, the Advocate General concludes that the General Court had to annul EUIPO’s decision, as it in fact did.
Accordingly, the Advocate General proposes that the Court should dismiss the appeals brought by Nestlé and EUIPO."
Read the press release here.