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“Square. Practical. Good.” For five decades, Ritter Sport has relied on the catchy advertising slogan and even more on the signature shape of chocolate bars. That is why the company has had trademark protection in the square shape since the 1990s. But competitor Milka has been contesting her privilege for ten years, and is obviously interested in offering you chocolate with the purple cow in the plaza. Now the Federal Court of Justice (BGH) is dealing with the “chocolate war” for the second time.
The Federal Patent Court last decided in 2018 that Ritter Sport can retain trademark protection. Milka is now defending this trial before the BGH.
Alfred Ritter GmbH sees himself as correct: “For many years, the vast majority of consumers have associated the Ritter Sport brand with chocolate packed in a square shape, even if the bar is wrapped in white aluminum foil without a logo or letter, “Ritter says in one Background Information about BGH’s upcoming decision.
Why do customers buy this chocolate?
The crux of the dispute is the question of whether the shape of the chocolate square alone “gives the products essential value.” Because according to the law, this is an absolute exclusion criterion for brand protection. The aim of the regulation is to prevent companies from gaining a monopoly on a long-term design, the use of which would also be important for competition.
During the trial, Judge Thomas Koch presumed that the consumer would perceive the square shape as proof of origin. However, the crucial question was whether he would buy the chocolate primarily from an aesthetic and functional point of view. The marketing strategy with the well-known slogan also plays a role in the evaluation of the case.
Ritter’s lawyer argued that nobody bought the chocolate just because of the shape. “It’s about the quality, the ingredients, the consumption is important.” This was also demonstrated in a survey, the company wrote in a press release.
Milka’s lawyer, on the other hand, argued that Ritter Sport’s success was largely based on the catchphrase, which was highly directed at form (“square”) and functionality (“practical”). The flavor does not really differ from the corresponding Milka varieties.
When asked by SPIEGEL, a spokeswoman for the Milka Mondelez group described the square as “a universal and common form (…). Therefore, it is important for us to have legal certainty about whether companies can market and sell square products.” The company did not respond to the question of whether Mondelez planned to offer its classically rectangular chocolate bars in a square.
Other companies also have the three-dimensional shape mark that Ritter has on the square: for example Ferrero with the milk cuts or Lindt with the golden rabbits. However, the protection requirements for the registration of a three-dimensional mark are very high, says Til Huber of the German Patent and Trademark Office.
A registered trademark grants many rights to its owner. Therefore, trademark office examiners are careful to avoid inappropriate monopolies. “This would be the case, for example, if we protect a form that other providers of goods also need.” Simply put, a form that can be protected must be so different that it is actually perceived as a brand.
BGH’s judgment on the “Chocolate War” is expected in the coming weeks.
