Hershey’s Novel Design Protected Under Trademark Law

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Riddle me this: It’s a brown rectangle that can be broken, but can’t be copied. What is it?

Hershey's Chocolate BarThe iconic Hershey chocolate bar design – rectangular, scored, with raised edges and the Hershey name embossed on each piece – has finally achieved protected status under trademark law. The US Patent and Trademark Office (PTO) reversed, on June 28, it’s decision against awarding protection to the candy bar design, finding, at the time, that the design was functional and non-distinctive.

Under trademark law, the design of a product is not protectable if it’s purely functional (i.e. there to serve a function, utilitarian, etc.) and non-distinctive (not unique, not artful, not cool). Hershey ran into trouble when it last attempted to trademark the chocolate bar design. If you look at that bar, you’ll notice that the bar is rectangular in shape and is scored so that the person enjoying the bar can easily break off smaller rectangular pieces to eat. This shape and scoring was found, by the PTO, to be purely functional. In other words, so what? Your bar is a rectangle with scores that function solely to help the consumer eat it. It’s not fanciful, it’s not artful, it’s not unique, it’s not… well… protected, which means other candy bar makers can copy the design with impunity and the King Kong of candy can’t force them to stop.

Hershey, in its appeal, successfully argued that the PTO was basically wrong because it failed to take into consideration the elegant yet subtle (ok, those are my words) way the edges of each scored piece is raised, framing the embossed Hershey name in the middle. If that’s not distinctive, what is?

So to all the makers of rectangular, scored chocolate bars out there, you will all have to find other ways to embellish your confectionary creations. As a chocolate lover, I, for one, won’t mind if you stick with the simple, non-embellished rectangle with scores. After all, isn’t it about the chocolate?

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