July 2009
Bounty bar shape not distinctive...
Mars Inc. have been refused permission to protect the shape of their Bounty bar as a Community Trade Mark.
Despite its best efforts it failed to convince European Judges that the Bounty bar shape had acquired distinctive character having been developed and sold since the 1950’s.
It submitted that the bars rounded edges and 3 chevrons made it instantly recognisable as a Bounty bar to consumers.
The European Court disagreed, stating that “[such] allegedly distinctive characteristics… cannot be sufficiently distinguished from other shapes commonly used for chocolate bars”.
It went on to add that for the shape of a product to be registered as a Trade Mark it must “depart significantly from the norms and customs of the sector to enable the average consumer to distinguish immediately and with certainty the product concerned from those of other undertakings”.
The decision was celebrated by Ludwig Schokolade, a German chocolate maker who (reportedly with the support of Nestle Rowntree) had challenged the European Trade Mark offices’ approval of the Bounty bar shape registration in 2003.
Briffa Comment
The Bounty bar is a world famous chocolate bar with an extremely high level of goodwill attached to it and so it is not surprising that Mars have attempted to protect in what is in its opinion a key brand element.
Despite the high degree of reputation attached to the Bounty bar brand the European Court of Justice has demonstrated that even in such situations there must be limits in order to balance the protection of Intellectual Property with fair competition.
The decision is unlikely to have a substantial negative effect (if any at all) on Mars’ ability to protect the Bounty bar brand as sufficient protection already exists over the various other brand elements, most significantly the name and get up of the chocolate bar.
For further information contact info@briffa.com.