Bunch of Squares: Milka loses chocolate bar shape battle against rival Ritter Sport

August 2, 2020

2 min read

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What's going on here?

Swiss Chocolate company Milka has lost its long running battle over square chocolate bars with German rival Ritter Sport.

What does this mean?

Ritter has used square shaped chocolate bars since 1932. By 1970 the brand had incorporated the square shape into its slogan which read, (translated from the original German) “quality, chocolate, squared”. In 1993 the company registered the square shape as a trade mark. 

Milka, owned by food giant Mondelez (formerly Kraft Foods), began selling a square shaped chocolate bar in 2010. The two then went to court and in 2016 Milka successfully had Ritter’s trademark declared invalid, but the ruling was overturned a year later. Milka was not deterred and took the case to the Federal Court of Justice. The Swiss brand argued that the square shape of the chocolate bar was a technical function of the product and therefore was not able to be trademarked, as under EU law a 3D shape cannot be trademarked if it has a purely technical function. However, the argument was unsuccessful as Milka’s final challenge in the Federal Court of Justice failed. The court declared that the shape of the bar was not purely technical, but also formed part of the brand’s character and history. The ruling means that Ritter can remain the only square chocolate bar in German stores. 

What's the big picture effect?

The decision comes after a 10 year long battle by Milka to overturn Ritter Sport’s monopoly on square shaped chocolate bars. Had Milka been successful in having the trademark invalidated, they would have gained a significant advantage by dislodging Ritter’s hold on the market for square shaped bars. 

The ruling was good news for Ritter, who can retain the use of the square shape as distinctive of their brand. Interestingly, a similar case faced courts in 2018, and this saw Nestle lose its trademark for the shape of the Kit-Kat bar. The court in that case stated that the consumers needed to regard the shape alone as indicating origin. While the shape of the Kit-Kat was apparently not able to do this, it would seem that the German courts think Ritter’s square shape can. 

The decision has again brought to light the controversial area of law that is trademarking shapes. While the law in the area remains relatively uncertain, brands should be very careful in how they use and register their trade marks. In order to ensure protection, brands would be wise to consider the ways and extent to which a shape alone can indicate origin, as opposed to serving a technical function. They would also be sensible to remain on top of the shape mark litigation which continuously graces the courts. 

Report written by Julie Lawford

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