Cognate's Trademark Blog

Candy Shape Wars

Yes it could be the name of a new gaming phenomenon,or dance craze, but no. In fact, it’s the daily tussle and bustle between big candy about who owns the rights to what shapes when it comes to your favorite chocolate or candy bar.


This informative piece published in Time will take you through the minefield that is candy shapes

We’ll never know precisely who discovered either chocolate or geometry. When it comes to putting them together, however, the titans of Big Candy have been squabbling over the rights to specific shapes for decades.

The shape wars were on prime display in July when Nestlé lost its latest appeal in the European Union to restore a trademark for the shape of the Kit Kat bar, which was successfully challenged by Mondelēz, a food-and-sweets conglomerate that sells a competing chocolate treat that is almost identical in its trapezoidal shape of the bars. (In three dimensions, this shape is known as a “pyramidal frustum” or, more generally, a “prismatoid.”)

Candy and snack companies frequently attempt to develop a unique shape to distinguish their products from the competition, whether it’s the Hershey’s Kiss teardrop, the triangular prisms of the Toblerone bar — another Mondelēz product — or the conical ridged Bugle snack, better known among mathematicians as a “tractricoid.” All three have active trademarks with the U.S. Patent and Trademark Office:

But when is a shape just a shape, and when is it a calling card? “The government has a lot of discretion. The general rule is that the applicant must prove it has ‘acquired distinctiveness’ in the trademark before the shape can be registered,” says trademark expert Josh Gerben of the Gerben Law Firm. “The process of deciding if a shape has ‘acquired distinctiveness’ is incredibly subjective. It’s basically squarely up to one examiner to decide each case, and, the result could easily be different from one examiner to another.”


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