FAQ

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.

trademark-registration

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IP Quiz

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?

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