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| DATE | 2015-09-07 |
| FROM | Ruben Safir
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| SUBJECT | Re: [NYLXS - HANGOUT] Copyright Wars - Hershey Bars
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Copyright Confection: The Distinctive Topography of the Hershey Bar
After a legal tug-of-war, Hershey's secured a trademark for the
structural design of their classic chocolate bar
Hershey
The unmistakeable surface of the classic Hershey bar (SI)
By Sarah C. Rich
smithsonian.com
October 24, 2012
After many years of apartment living, I finally live in a house where,
on October 31, real, live trick-or-treaters will come knocking on my
door. Preparing for this thrilling event has so far involved gluing
paper grins onto paper skulls, debating whether a kabocha squash can be
a jack-o-lantern, and searching Amazon UK for candy options more unique
than the kinds that line the aisles of Walgreens. I was aiming for
Cadbury or Ritter Sport, but realized toddlers dressed as action figures
will probably not appreciate the extra effort (and expense), so a giant
bag of Hershey's miniatures is now en route to my house.
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In the process of all this internet searching for particular species of
candy, I discovered something of interest to design thinkers: The plain,
boring, classic Hershey bar that I'd gone to great lengths to avoid
buying is perhaps not as generic as it seems—at least not in legal
terms. Earlier this year, Hershey Chocolate and Confectionary
Corporation won a battle with the U.S. Patent and Trademark Office to
legally protect the physical design of their bar. This, I learned, is
not an easy thing to do.
Drawing of the Hershey bar design for the company's trademark application
Drawing of the Hershey bar design for the company's trademark
application (USPTO)
Anyone who has bought a stack of Hershey bars for a fireside smores
binge knows that the 12-rectangle grid is great for snapping off just
the right size chunk to match up with the perforated platform of a
graham cracker. In other words, its scored surface is highly functional.
But functionality is explicitly not a qualifying feature when
registering a product design for a trademark. The USPTO originally
refused the Hershey’s application, citing the little lines that make the
bar snappable as being characteristic of many brands of chocolate
In order to appeal, Hershey’s had to go back and prove that its ridges
and troughs went beyond utility, and that chocolate consumers had come
to associate the design itself as an intrinsic feature of a Hershey bar,
even in the absence of the brand name. And they succeeded.
According to a report by the law firm Baker Donelson, the candy maker
sought protection for twelve equally-sized recessed rectangular panels
arranged in a four panel by three panel format with each panel having
its own raised border within a large rectangle, and while the individual
design elements alone were insufficient to garner trademark protection
on the grounds that each element is merely a functional configuration of
the candy bar, the TTAB ruled that the combination of the design
features entitled the candy maker to registered trademark protection.
Perhaps their best piece of evidence came inadvertently through cookware
retailer Williams-Sonoma, who had started marketing a brownie pan in the
shape of a Hershey bar, featuring the word chocolate in each rectangular
segment where normally “Hershey” would appear. They did Hershey a solid,
demonstrating their faith that consumers would think of the stalwart
brand simply by seeing that 12-cell grid.
A photo of the brownie pan in the shape of a generic Hershey bar, sold
by Williams Sonoma until a trademark infringement claim was made
A photo of the brownie pan in the shape of a generic Hershey bar, sold
by Williams Sonoma until a trademark infringement claim was made (USPTO)
The next logical question might be: Who cares? Well, for product
designers and producers of any consumer good, Hershey’s attainment of a
trademark for their candy bar’s physical structure sets an interesting
precedent. It has long been difficult for companies to trademark product
designs when the notable features are essential to the object’s
function. Hershey’s relied on very subtle nuances in their design, as
well as more than a century of established brand recognition, to
sidestep the argument that segmenting their bars was a utilitarian move.
For designers creating a new product inspired by a classic, the case is
also a cautionary tale.
So this Halloween, as you pop pieces of candy between costumed visitors,
or steal the good stuff from your kid’s plastic pumpkin, think about the
design of the confections you gravitate towards, and whether the
architecture of your chocolate bar influences how much you enjoy it.
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About Sarah C. Rich
Sarah C. Rich
Sarah Rich is a writer and digital media consultant who previously
contributed to Smithsonian.com's Design Decoded blog. She co-founded
Longshot magazine and is the co-curator of the Foodprint Project.
Read more from this author | Follow -at-Sarahrich
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