How does the Easter bunny lay his eggs?
Just as soon as we have welcomed in the New Year, there is a collective groan from the majority as the supermarkets start filling up with Easter eggs. However, with my very sweet tooth, I immediately start adding them to my basket. Whether you buy them in January or in April, who can really resist some delicious chocolate that is moulded into the perfect shape for breaking apart, and with lots of cheerful packaging and branding to complete the package.
However, have you ever stopped to consider how much potential there is in an Easter egg for Intellectual Property rights?
There is no doubt that the chocolate is the main component of the Easter egg experience. There is a long history of patents behind the modern day hollow chocolate egg. First released in the UK in 1873 by Fry & Sons, this stalwart of the spring months was made possible by early patents from Fry & Son such as a method of mixing cocoa powder with sugar and cocoa fat that could be moulded into a bar.or an egg shape.
Over the years, you would think that the principle of moulding chocolate into an egg shape, or the egg itself could not have changed much, or be entitled to further IP protection. This is not the case. In order to obtain a patent, an invention must be new, inventive and industrially applicable. Patents can be obtained for both products and processes meaning that within the food and drinks industry it may be possible to not only obtain a patent for a new product, but also for a new method of processing.
For example, consider US Patent No. 3,961,089 granted over 100 years after the first Easter egg was marketed in the UK, and which is directed towards a method of manufacturing a hollow chocolate article. The patent was granted with two claims in the US, both directed to a method of manufacturing hollow chocolate articles. The claims require forming two hollow shells, coating each shell on the inside with a molten edible layer, cooling the layer on one shell and then inverting the other shell while the layer is still flowable to mate with the shell having the set layer and secure the shells together by the overlapping inner layers.
While the patent mainly references Easter eggs in the description, the claims were not limited as such meaning that the method would cover a method of making any shape of hollow chocolate article.
Figure 1 - Method of manufacturing a hollow chocolate article from US3961089
Moving on from the chocolate itself, in the 1970's, a new Easter egg experience was made possible - a toy filled Easter egg. This development was also subject to patent protection in GB1421516 which was directed towards the now famous "Kinder Egg", a product which is popular all year round. This is an excellent example of a how a seemingly simple product modification can reap many benefits and be entitled to patent protection.
Figure 2 - Toy encased in chocolate egg from GB1421516
Not only must the chocolate egg taste good, it must look the part as well. This is where design protection can play an important role. For example, see GB design no. 2035391 which is directed towards a chocolate egg having a distinctive rabbit surface decoration. In the UK, it is possible to obtain registered design protection for the look of a product if the appearance, physical shape, configuration and/or decoration is new and has individual character.
Obtaining a registered design is a relatively inexpensive and quick process that can afford up to 25 years' worth of protection. Therefore, if your food product has a distinctive shape or appearance, including as noted above a specific surface decoration, applying for a registered design can provide protection for these aspects.
Figure 3 - Chocolate Rabbit Easter Egg Design
Easter eggs are instantly recognisable in the shops not only because of the chocolate egg shape but also the distinctive packaging and branding which are used for the products. All of these aspects could also provide valuable IP for the Easter egg. The Easter egg box itself has been subject to a considerable number of modifications and innovations over the years, trying to solve the problem of how to contain fragile Easter eggs in a stable manner. UK Patent no. 2154213 provides one example where the claims were granted towards a new and inventive carton arrangement for holding an Easter egg securely.
Figure 4- Carton for Easter eggs and the like from GB2154213
Of course, the packaging itself may also be entitled to design protection if the appearance of the packaging is new and of individual character. GB Design No. 4010010 provides one example of a decorative box for an Easter egg having a particular shape and design.
Figure 5 - Easter egg box design from GB4010010
Last but not least, your Easter egg will be marked with a particular brand and logo. This will usually be the deciding factor at the moment of reaching for one particular egg on the supermarket shelf.
You will go for the one made by that chocolate brand you love, or the one with that logo you remember from last year which had a great filling, or simply the one with that cute bunny face on top.
All of these signs will likely be registered trade marks that the manufacturers have meticulously chosen and protected. Some might have gone a step further and sought trade mark protection for a specific colour, such as Cadbury with its classic purple wrapping paper.
However, obtaining registered rights for a chocolate egg's packaging colour or shape is very challenging: only those marks which have acquired distinctive character will reach registration - those for which, with time, Easter egg lovers have come to recognise the specific colour or shape as an indication of origin rather than a simple decoration.
So while cracking into your Easter eggs this year, take a minute to think about the huge IP potential from such a product but more importantly, enjoy the chocolate!
Originally Published March 2021
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.