Can you guess what the design below represents? (We purposely didn’t want to reveal it in the headline.)
One of our favorite guesses came from a commenter on core77.com — “garage door.” A very good guess . . . but, unfortunately, wrong.
If you said “Hershey Bar” you are correct! Earlier this month, the U. S. Patent and Trademark Office (USPTO) Trademark Trial and Appeal Board (TTAB) reversed an earlier USPTO “refusal of registration” for the iconic candy bar product configuration. The American chocolate manufacturer will now be allowed to register the design and shape of its candy bar as a trademark.
The Hershey Company has manufactured this particular design of the candy bar since 1968, but only recently attempted to register it as a trademark. As JD Supra noted, product configuration trademarks aren’t particularly new or rare; they include the Coca-Cola bottle, the Perrier bottle, and Emerson Electric’s thermostat, among others. You might say that there are lots of candy bars on the market that are rectangular in shape and lots of them have recessed panels to make them easier to break apart. What’s different about the Hershey bar?
The TTAB ruling based its decision on two criteria: functionality and distinctiveness. Functionality refers to whether the design features are purely functional in nature. If they are functional, trademark protection is barred. Although the TTAB found “certain features” of the Hershey Bar design were “functional and common to other candy bars” it ruled that the “overall appearance” of the candy bar was not functional and, therefore, can be protected as a trademark.
As for distinctiveness, the trademark applicant must show that the product design “identifies the producer or source of the product.” Hershey presented not only sales revenues and advertising expenditures, but also the results of a consumer recognition survey and evidence regarding the length of use of the mark. The TTAB concluded that Hershey’s evidence proved the candy bar configuration had acquired distinctiveness “within the meaning of Section 2(f) of the Trademark Act.”
And with that, the TTAB reversed the refusal of registration.
What’s your favorite product configuration trademark?