The EU trademark office (OHIM) decided in 2003 to allow Mars to trademark the bar’s shape throughout the EU, but the decision was overturned in 2007 after German chocolate maker Ludwig Schokolade filed a complaint with OHIM.
This latest case was sparked when Mars went back to the trademark office to file a new claim in January last year, with the aim of trade marking the shape of the coconut-flavoured Bounty Bar, which features rounded corners as well as a triple chevron design on top of each bar.
However, the European Court of First Instance has now ruled that the bar is “devoid of any distinctive character” that could justify the trademark. It said that “an elongated shape is almost intrinsic to a chocolate bar and does not therefore significantly depart from the norm and customs of the relevant sector.”
Mars had argued that “applying rounded ends to an elongated rectangular chocolate bar is in itself unusual in the sector” – a claim that the court rejected, saying there were many other bars on the market with rounded ends.
Other deciding factors in the case included the fact that the bar is sold in opaque packaging, so consumers are not aware of the bar’s shape until after they have opened the package; consumers are likely to perceive the triple-chevron shape as decorative, rather than an indicator of the bar’s commercial origin; and that the bar shape is one that “comes naturally to the mind of the consumer” when they think of chocolate bars.
A Mars spokesperson told ConfectioneryNews.com: "Our trademarks and intellectual property are extremely valuable to us. In the highly competitive world of branded goods, trade mark registration of the key brand elements is part of the everyday process of ensuring that our brands remain protected effectively and that others do not unfairly trade off the goodwill created in our brands."