Germany’s iconic Ritter Sport chocolate comes in a super-handy format: 16 squares in a four-by-four pattern. Easy to store, easy to carry. Other candy firms have naturally been keen to follow suit—but they can’t, at least not in Germany.
The German Federal Court of Justice ruled on Wednesday that only Alfred Ritter, Ritter Sport’s maker, can sell square chocolate bars. This marks the latest stage in a long-running challenge from Mondelez’s (MDLZ) Kraft, maker of the popular Milka chocolate line.
Kraft’s argument is that it is perfectly normal for a chocolate-maker to package its wares in squares, so it makes no sense to trademark the format.
In 2010, Kraft started selling a “double chocolate bar” that could be broken into two large squares of smaller squares. Ritter sued, claiming infringement of its 3D trademark. It won at the district court level, before an appeal court sided with Kraft. Germany’s supreme court then refused to hear Ritter’s appeal in 2013.
Kraft then went further, attempting to have Ritter’s 3D trademark nullified on the basis that the square shape of a chocolate bar is simply a technical function of the product. If a product’s shape is purely functional, under European law it is not supposed to be possible to trademark that shape.
It failed at first, with the German Patent and Trademark Office ruling that the iconic design was also a factor, alongside its functionality, and also pointing out that, well, it’s perfectly possible to make functional chocolate bars that aren’t square.
But then Kraft struck it lucky at the Federal Patent Court, which agreed to delete Ritter’s 3D trademark because square chocolate bars are particularly easy to package, store, transport, portion, and carry in a jacket pocket. That makes the square shape a technical function, the court said.
Ritter took the case up to the Federal Court of Justice, which on Wednesday bounced the case back down to the Federal Patent Court, on the basis that chocolate bars don’t have to be square in order to be transported and enjoyed. “The square form of the chocolate bar is not a crucial usage attribute of chocolate,” the judges wrote in their ruling.
The Federal Patent Court will now have to re-examine its deletion of Ritter’s 3D trademark. For now, though, Ritter retains its monopoly on square chocolate bars.
Mondelez is not exactly an enemy of 3D trademarks for chocolate, it should be noted. In the U.K., it’s trying to defend its own trademark on its alpine-looking Toblerone chocolate bar against local retailer Poundland, which has been selling a similar-looking bar called “Twin Peaks.”