German chocolate maker Ritter Sport has won the right to produce its unique square chocolate, fending off a series of challenges by Milka.
Ritter Sport’s designed has become ubiquitous in Germany, having initially been made in the 1930s to fit easily into a jacket pocket. Their monopoly on the shape was threatened when Milka won a case against them in 2016, but the recent judgement allows Ritter to reclaim their hold on the square bar. The court ruled that consumers considered the square nature of the chocolate bar as an indication of both where the chocolate came from and its quality.
Commenting on the case, lawyer Nora Fowler of EIP said: “German chocolate brand Ritter Sport has tasted sweet victory in its battle with Swiss brand Milka. Milka had filed a cancellation action against Ritter’s German trademark registration for its 3D shape mark consisting of the plain packaging of its square chocolate bar. Ritter started producing the bar in 1932 and registered the mark in 1995. 3D shape marks are notoriously difficult to register, often considered merely functional or adding value to the product, rather than an indication of origin. Indeed, Milka argued the mark had a technical function and added value and therefore could not be monopolised. An initial decision in Milka’s favour was overturned in 2017. The German Federal Court of Justice has now held that Ritter may keep its registration. The Judges found consumers identified the shape as an indication of origin but, crucially, the shape doesn’t give substantive value to the product or lead to price differences. The ruling means Ritter Sport can remain the exclusive square bar in Germany.”
Further details about the case can be found here.