Can anything be really square
End of the "chocolate war" : Ritter Sport wins in patent dispute
"Square. Practically. Good. ”Ritter Sport has been promoting its chocolate with this slogan for decades. But the "square" is being challenged by the Swabian company from the competition. On Thursday morning, the Federal Court of Justice (BGH) in Karlsruhe again raised the question of whether only Ritter Sport was allowed to produce its square-shaped chocolate. The result: Yes, Rittersport won the sponsorship dispute.
For ten years, the Milka Group Mondelez, formerly Kraft Foods, has been trying to obtain the cancellation of this trademark right. "Milka and Ritter Sport have already fought a number of wars against each other," says Jens Matthes, expert in trademark law and partner at Allen & Overy.
One thing is clear: it would have been a considerable advantage for Milka if Ritter Sport had lost its trademark rights. Every supermarket would then have been able to offer square chocolate products, the Ritter Sport brand losing its recognition value.
Alfred Ritter GmbH & Co. KG had the square chocolate packaging registered as a trademark in the 1990s. If the form alone is sufficient to signal to consumers what product it is, companies can have them protected as so-called 3-D trademarks.
Toblerone, Nutella, Lindt Bunny - all protected 3-D brands
4900 such trademarks are currently registered at the German Patent and Trademark Office in Munich - with around 826,000 entries in total. Registered three-dimensional brands are, for example, the gold bunny from Lindt, the mountainous table from Toblerone or the Nutella glass.
At that time, Ritter Sport had neutral packaging without any color or imprint, but with the typical side flaps and the longitudinal seam for kinking on the back. Milka takes action against this. Already in 2017 there had been a judgment of the BGH in the “chocolate war” of the competitors.
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At that time, the judges in Karlsruhe contradicted the Federal Patent Court, which had previously applied for the trademark to be canceled in the interests of Milka. The Federal Patent Court based its judgment on the fact that the square shape would fit particularly well in the pocket of a sports jacket. In 1932, co-founder of the company, Clara Ritter, had the idea of making the table square. The shape is therefore an advantage over the competition.
Taste is more important than shape
The BGH decided, however, that the square shape was not an “essential property of chocolate”. A bar of chocolate does not have to be square in order to be recognized and used, unlike the round shape of the ball. Taste and ingredients are more important.
The Karlsruhe judges referred the case back to the Federal Patent Court to clarify whether there are other possible reasons that speak against trademark protection. This is where a provision of the Trademark Act comes into play, which is controversial among experts. It is criticized by many as "completely wrong and nonsensical", says Jens Matthes.
The law states that no shapes may be protected as trademarks that “give the goods substantial value”. The BGH had previously specified that this was particularly about an aesthetic value. “Which judge can say what the objective aesthetic value of a thing is?” Asks Matthes. After all, beauty is in the eye of the beholder. The lawyer is convinced that this question can ultimately only be about subjective evaluations and decisions.
The verdict is to be announced in the next few weeks
When it comes to the question of whether packaging may be protected, one is in any case within a limit. In 2018 the patent judges decided again, this time in the spirit of Ritter Sports. The square shape does not add any significant value to the chocolate bar. A square is "nothing else (...) than a special rectangle". At least the difference could "not justify any relevant artistic or design value and no significant difference in the shape of the goods".
Against this, Milka took action. Precisely because of its simplicity, the square has such a value that the basic shape must also be available to the competition. "It's the same game as 2017, it's just about a slightly different legal regulation," says Matthes. It is particularly interesting for trademark lawyers how the BGH deals with the question of aesthetic value. How the verdict will turn out was completely open.
During the hearing in May, the presiding judge of the BGH Thomas Koch assumed that the consumer would probably perceive the square shape as a proof of origin. The crucial question, however, is whether he is buying the chocolate mainly for aesthetic and functional reasons. The marketing strategy with the well-known slogan also plays a role in assessing the case.
Ritter's lawyer, in turn, argues that no one buys chocolate just because of the shape. “It's about the quality, the ingredients, the consumption is important.” Milka's lawyer countered that the success of Ritter Sport was based heavily on the advertising slogan, which was very much aimed at form and functionality. The taste does not really differ from the corresponding Milka varieties. (with dpa)
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