United States: The Shape Of My Heart: A Guide To Chocolate Shape Trademarks For Your Valentine

Last Updated: February 14 2018
Article by Jenevieve J. Maerker

The past year has been an active one in the chocolate trademark wars, as confectionery giants attempt to use trademark law to protect the shapes of iconic candy products.  In the US, and in many other jurisdictions, companies can protect product shapes or configurations, but only if they are sufficiently distinctive that the design functions as an indicator of source.  Chocolatiers have had varying degrees of success in convincing trademark offices and courts that their confections have attained that status.  In case you would like to give your valentine some sweets that inspire not only romantic feelings but also trademark-themed conversation, here are a few delicious options for your consideration:

  1.            Kit Kat

As we have previously reported, confectionery giant Nestlé has been embroiled in a years-long dispute in various jurisdictions with rival confectionery/snack conglomerate Mondelez over trademark protection for Nestlé's four-fingered Kit Kat chocolate wafer bar.  Last May, the UK Court of Appeal ruled against Nestlé in an appeal of Mondelez's opposition, finding that the shape of Kit Kat did not function as a "badge of origin" and therefore was not entitled to registration as a UK trademark.  However, the shape is protected as a trademark in other jurisdictions, including Germany, France, Australia, South Africa, and Canada.  Notably, that list does not include Norway, where Mondelez subsidiary Freia has been distributing a lookalike bar called Kvikk Lunsj ("quick lunch") for nearly as long as Kit Kat has been around. "Fingers" crossed that Mondelez's determination in attacking Kit Kat's product configuration trademark means that it is planning to expand distribution of Kvikk Lunsj to worldwide markets!

  1.            Ritter Sport

Mondelez (through its Kraft division) has also been on the attack in Germany, seeking to cancel Ritter Sport's three-dimensional trademark registration for the packaging of its square-shaped chocolate bar.  Although a lower court had sided with Kraft, reasoning that the square shape of the package resulted from the square shape of the chocolate bar inside, which had practical advantages, the Federal Court of Justice held that the square shape was not essential to the use of the chocolate bar, and could not be invalidated as a trademark on that basis.  After that decision last October, the case was remanded to the lower court for further consideration.  Ritter also owns a US trademark registration for its square packaging, dating from 1986.

  1.            Toblerone

To be clear, Mondelez is not an enemy of chocolate shape trademarks across the board.  It is the owner of the Swiss brand Toblerone, and has several US trademark registrations for the shape of its triangular "peaks and valleys" chocolate bar, dating as far back as 1971.  Last fall, Mondelez found itself on the defensive end of a UK three-dimensional trademark dispute.  Toblerone sought to cut costs by increasing the spaces between the "peaks" of Toblerone bars, and a UK retail chain, Poundland, announced its intention to capitalize on consumer displeasure with that change by releasing a rival bar called Twin Peaks, which shared a similar shape, except that each triangle had two "peaks."  Mondelez sent a cease-and-desist letter, and Poundland countered by seeking to cancel Mondelez's UK registration for the Toblerone shape, arguing that it had lost its distinctive character as a result of the "austerity" redesign.  The parties ultimately reached a settlement, pursuant to which Poundland was allowed to sell the stock it had already produced, in distinctive packaging, as long as it changed the shape of its "twin peaks" chocolate bar once that stock was sold.

  1.            Lindt Chocolate Bunnies

Hippity hoppity, Easter's on its way!  I know, it's only Valentine's Day, but Easter is coming early this year, and Cadbury eggs are already in stores!  (And yes, that red, yellow, and blue wrapper is a registered trademark.)  Chocolate bunnies are ubiquitous in spring, of course, but Lindt thinks that its chocolate bunny is distinctive.  Although Lindt's efforts to register a three-dimensional trademark for its golden bunny have been rebuffed by the European Union Intellectual Property Office, Lindt owns a couple of US registrations for the shape of its bunny, dating from at least 2003.  While the color mark (gold with brown accents and a red bow) is based on acquired distinctiveness, Lindt's earlier registration for the mark without any color claim is apparently based on inherent distinctiveness.

  1.            Burdick's Chocolate Mice

And finally, a bit of local flavor: New England favorite chocolatier L.A. Burdick has registered the shape of its famous chocolate mice as a trademark, consisting of  "a three dimensional configuration of chocolate candy in the form of a mouse, with chocolate-covered almond slices sticking out of the candy arranged to resemble the mouse's ears, a strand of silk attached to the base of the chocolate to resemble the mouse's tail, an elongated point at the top of the chocolate to resemble the mouse's nose, and three small confectionery dots placed at the end of and near the elongated point to resemble the mouse's nose and eyes."  That registration is based on acquired distinctiveness, as is Burdick's registration for its seasonal chocolate ghost.  Last year, however, Burdick failed to obtain registration for its chocolate elephant, which had only been on the market since 2016, apparently not long enough to acquire distinctiveness and function as an indicator of source.

Of course, you could opt for the same-old, same-old heart-shaped box of chocolates for your valentine, but we humbly suggest that this year you go with something a bit more distinctive.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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