24 July 2020TrademarksRory O'Neill

Ritter Sport prevails in Milka square chocolate suit

German chocolate maker  Ritter Sport has won a long-running trademark dispute against rival  Milka over the square shape of its chocolate bars.

Ritter Sport says it has been using the distinctive shape since 1932, when co-founder Clara Ritter proposed to “make a chocolate bar that fits in everyone's jacket pocket without breaking and weighs the same as a normal long bar”.

Fellow German brand Milka, a subsidiary of global food conglomerate Mondelēz, challenged Ritter’s trademark for the shape after it released its own square bar in 2010, beginning a lengthy court battle.

The country’s Federal Patents Court, which also hears trademark disputes, initially ruled in Milka’s favour, although this decision was later overturned after an appeal from Ritter.

The Mondelēz brand challenged the Patents Court’s final decision in Ritter’s favour at the Federal Court of Justice, Germany’s highest judicial authority.

In a  decision published yesterday, July 23, the Federal Court of Justice sided with Ritter, bringing a definitive end to the dispute.

According to the court, the square marks are valid as trademarks because the shape does not add any “essential value” to the chocolate itself. Rather, the court found, the shape only acts to indicate the commercial origin of the bars.

The decision also cited Ritter’s marketing campaign built around the slogan "Square. Practical. Good.”, which the court said strengthened Ritter’s case that the shape functioned as a trademark.

Mondelēz itself has fought to protect trademarks for the shape of another one of its chocolate brands, Swiss brand Toblerone. The triangular form of the bar is intended to evoke the shape of the Matterhorn, an Alpine mountain which also features on Toblerone packaging.

UK discount retailer Poundland unsuccessfully tried to challenge the Toblerone 3D shape marks, claiming that they weren’t distinctive enough.

But Mondelez prevailed and Poundland was forced to scrap its own triangular chocolate bar.

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