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Rather, is seeking to register a candy bar comprising all of the elements shown in the drawing and in the description of the mark, i.e., 'twelve.equally-sized recessed rectangular panels arranged in a four panel by three panel format with each panel having its own raised border within a large rectangle.'" Patent and Trademark Office (USPTO) refused Hershey’s trademark application for its candy bar design based on the functionality doctrine, reasoning that "the flat rectangular shape and the 'scoring' of candy bar into smaller pieces represent functional features which constitute an absolute bar to registration." 7 On appeal, the TTAB agreed that "that scoring or segmenting candy bars, in and of itself, serves a useful function to enable the consumer to break the candy bar into smaller pieces for consumption." It also recognized that candy bars come in all sorts of segmented shapes, "comprised of squares, rectangles, triangles, ovals, and the like," which are "often arranged in a variety of common symmetrical patterns, including, one by six, two by four, three by ten, four by six, etc.," to conclude that "candy bar segmentation is a functional feature of such goods."īut, the TTAB also noted that Hershey's "is not seeking to register a segmented rectangular candy bar of no particular design. Trade dress includes trademark protection for both “product packaging” and "product design." "Product-packaging" trade dress "is composed of the overall combination and arrangement of the design elements that make up the product’s packaging, including graphics, layout, color, or color combinations." 5 "Product-design" trade dress – the type of trade dress at issue in In re Hershey – "covers a product’s shape or configuration and other product design features."įor both types of trade dress, the design or package feature cannot serve as a trademark if it is "functional," that is, "if it is essential to the use or purpose of the article or if it affects the cost or quality of the article," or if "exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage. This type of trademark protection falls under the category of trademark law called "trade dress." In this case, Hershey's sought protection not for the word "Hershey's" or the Hershey's logo, but for the unique candy bar design that had been in use for more than 40 years. 2 Hershey's has a number of conventional registered trademarks, such as "Hershey's" 3 and "Hershey's Kisses" 4 for chocolate candy. First, it is important to understand how and why trademark law protects this type of food product design and the scope of the protection.Ī trademark is any word, name, symbol or device, or any combination thereof, used to identify and distinguish goods from the goods sold or made by others. The decision has some interesting implications on the scope of product-design trademark protection, particularly as it relates to foods.
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The TTAB also ruled that Hershey’s had acquired the requisite "secondary meaning" for trademark protection in "production-design" trade dress.
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1 The candy maker sought protection for "twelve.equally-sized recessed rectangular panels arranged in a four panel by three panel format with each panel having its own raised border within a large rectangle," and while the individual design elements alone were insufficient to garner trademark protection on the grounds that each element is merely a functional configuration of the candy bar, the TTAB ruled that the "overall combination" of the design features entitled the candy maker to registered trademark protection.
CANDYBAR APP TRIAL
Hershey Chocolate and Confectionary Corporation ("Hershey's") recently gained registered trademark protection for the design and configuration of its candy bar after prevailing in an appeal before the Trademark Trial and Appeal Board (the TTAB).
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