Mars Can’t Trademark Shape of Bounty Bar

(CN) - A European court ruled Wednesday that Mars Inc. may not trademark the shape of its Bounty candy bar. The ruling marks a victory for Ludwig Schokolade, a German chocolatier, which had challenged registration of the round-edged and triple-dolloped confectionary.

The Luxembourg-based Court of First Instance annulled Mars' registration of the three-dimensional form, since it is not distinguishable enough from other chocolate bar shapes.

In 2003, Mars registered Bounty's shape with the Office of Harmonization for the Internal Market, which controls trademarks for the European Union.

Ludwig Schokolade quickly challenged the registration on the basis that it lacked distinctive character. The case arrived in Europe's second-highest court after an appeal within the harmonization office found that the mark had acquired distinctive character through use.

The mere shape of the Bounty bar, without any packaging or graphics, is not distinctive enough to be discerned by the "average consumer," the court wrote. "[A]n elongated shape is almost intrinsic to a chocolate bar ... [i]t is a shape which comes naturally to the mind of the consumer of mass consumption goods."

The court rejected a Mars survey conducted in six European Union countries - the United Kingdom, Belgium, France, Germany, Italy and the Netherlands - which Mars argued reflected shape recognition rates as high as 70 percent. Survey results cannot be projected onto the other nine countries that belonged to the European Union when Bounty was introduced in 1998, and Mars should have filed evidence for more states if it wanted to prove that its Bounty shape was distinctive throughout the entire community, the ruling states.

The court dismissed the trademark application and ordered Mars to bear the costs of the action.

Ludwig Schokolade, owned by the German grocery group Krüger, is one of the largest chocolate manufacturers in Germany.

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