Milka misses the mark Ritter Sport chocolate bars valid shapemark

Shapemarks are not uncommon in the chocolate industry. Think of Toblerone's triangular shape, Tony Chocolonely's unevenly spaced blocks and last but not least the famous KitKat bar. Ritter Sport has been making square chocolate-bars since 1932: a small square piece of chocolate that fits perfectly into a sports jacket without breaking. The product has long been successful and to prevent imitation, the company had the shape of the packaging registered as a trademark in 1993.

When Milka comes up with a comparably shaped bar in 2010, a conflict arises. Milka is fighting it in every way possible. Ultimately, the case revolves around the question of whether a shape can possibly give substantial value to a product.

The German court ruled that the square shape does not give substantial value to the product. This question can arise with a certain type of products, if the shape has an artistic value, the shape differs vastly from what is usual, if there is a big price difference or if there is a clear marketing campaign to emphasize certain artistic aspects of the design.

This case involves a plain white square packaging, which is not expensive and has no value. The shape mark is therefore valid. Milka is no longer allowed to use the square shape.


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MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE. Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark. Infringement or not?