Halloween is just around the corner. I’m considering buying candy for both trick-or-treaters and myself. Shhh. Don’t tell my dentist. Many know that candy brands and logos can be trademarked, but most don’t realize that candy shapes can as well.
A shape (such as the candy examples below) would be registered as ‘Trade Dress.” Similar to other types of trademarks, trade dress can be registered with the U.S. Patent and Trademark Office (USPTO) and receive protection from the federal courts.
To receive protection, both of the following must be true:
- The trade dress must be inherently distinctive, unless it has acquired secondary meaning.
- The junior use must cause a likelihood of consumer confusion.
Protecting product shapes for various products like other IP issues, has caused some argument. Many believe that one should not be able to protect the shape of an item or should automatically allow others to utilize it. See these examples regarding Hershey’s chocolate bar segments:
And this dispute over the kitkat bar shape. Nestle and Cadbury both asked the court to “give me a break”-get it?
Here are some examples of trademarks of shapes for candies that we know and love and links to their USPTO information.
Jewel Shape of Ring Pop
This interesting article explains that even though the Topps Company, the makers of Ring Pops had two patents expire and they were able to still keep their ring pops going.
Pez Candy Brick
Tootsie Roll’s Twisted Wrapper
Ok now I want candy! Yes, plenty of candy of various types!
From trade mark dress applications like the ones mentioned above to design and utility patents, Mohr IP Law offers bins of delicious opportunities. And, because we prefer to give treats than tricks we would love to offer you a no-cost 30-minute attorney consultation. Contact us today!