KitKat wants to protect the shape of her four-fingered bar and applies for a trademark registration and based on acquired distinctiveness. OHIM refuses KitKat’s application, however. The mark is used in fourteen of the fifteen member states (at the time of application), but it acquired distinctiveness in only six countries. KitKat appeals this decision and the Board of Appeal choses her side.
The BOA considers that the European Union should be seen as a unit and not as fifteen (now 27) separate countries. The brand has acquired distinctiveness in a substantial part of the European Union , namely in six countries, and has therefore acquired sufficient distinctiveness throughout the EU.
If the BOIP follows this line, it may mean that integration in the Netherlands is sufficient for protection in the Benelux. With this new policy, large national magazines and TV programs could finally secure their rights to a trademark registration.
