Nestle obtained a Community Trade Mark registration of the unique four-finger Kit Kat in 2006, but Nestle's rival Cadbury (now owned by Mondelēz International, a recent split from Kraft Foods) won an appeal which invalidated that registration. Nestle fought back, and the Board of Appeal at the Community Trade Mark Office reinstated the trademark on the four-finger chocolate bar shape. This registration prevents other confectionars from selling chocolate bars with a similar four-bar structure anywhere in the EU.
Here in the U.S., the shape and design of a product is referred to as its "trade dress", and if trade dress satisfies the federal standards of trademark protection as identifying and distinguishing a product, it is registerable. To be registerable as a trademark, the elements of the trade dress must be capable of definition such that the public will know the exact parameters of what is being claimed as trade dress. One example of this is the Hershey Bar. Last summer, the United States Patent & Trademark Office granted Hershey's a registration for its signature candy bar shape.
In 2000, the U.S. Supreme Court ruled that product design trade dress can never be classified as "inherently distinctive." Those claiming rights in product design trade dress, such as the Kit Kat shape or the Hershey shape, must always prove that the design has acquired secondary meaning in the market. The USPTO found that Hershey’s had presented evidence to show that the design of the Hershey bar had acquired distinctiveness and was therefore registerable.
However, those who can't prove secondary meaning in their product design shouldn't fret. Design patent and copyright protection are usually available as alternatives to obtain protection for a design that is source identifying but has not yet obtained secondary meaning.
Next time you "have a break", grab a Kit Kat and check out this protected four-finger design.
© Mari-Elise Taube, Stites & Harbison, PLLC, 2013
Send email feedback- mtaube@stites.com
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