NESTLÉ has pledged to fight on after losing the latest round of a lengthy legal battle over its iconic four-finger KitKat.

The European Court of Justice in Luxembourg today dismissed an appeal by the confectionery giant against an earlier ruling against the company, which is seeking to protect the EU-wide trademark status of the shape of the chocolate bar.

The General Court said in 2016 that Nestlé had to prove that the bar, which was invented in York and is still made at the Haxby Road factory, was recognisable in every EU country.

The ECJ found that the General Court was right to annul the European Union Intellectual Property Office's (EUIPO) 2006 decision that "distinctive character had been acquired" without "adjudicating on whether that mark had acquired such distinctive character in Belgium, Ireland, Greece and Portugal."

It said the EUIPO must now reconsider whether the bar's three-dimensional shape could be retained as an EU trademark.

Nestle said afterwards that it believed the four-finger KitKat's distinctive shape deserved protection and, following the findings, the case would now be sent back to the EUIPO Board of Appeal to examine the evidence the company had filed.

“Today’s judgment is not the end of the case and concludes that the distinctiveness of a trademark (in this case, the shape of our four finger KitKat) does not need to be established in each and every EU country but rather across the EU as a whole using a variety of evidence," it said.

“We think the evidence proves that the familiar shape of our iconic four finger KitKat is distinctive enough to be registered as an EU trademark.”

It said the judgment was not final, as the court had not made any ruling as to whether the shape could  be registered as an EU trademark but had issued a ruling on the test for registering an EU trademark based on acquired distinctiveness.

"The courts will now further examine the evidence filed by Nestlé in light of the new guidance." 

It said it believed the evidence submitted would be sufficient to prove acquired distinctiveness of the 'iconic and much loved' shape throughout the EU, and its registration as an EU Trademark would be confirmed.

It added that it already owned national trademark registrations for the shape in many EU countries.