Mars has failed to obtain trademark protection for the bounty coconut bar.
The European Court of First Instance in Luxembourg declared:
“The allegedly distinctive characteristics, namely the rounded ends of the bar and the three arrows or chevrons on top of it, cannot be sufficiently distinguished from other shapes commonly used for chocolate bars.”
The verdict is a victory for Ludwig Schokolade, a German chocolate manufacturer, which challenged a decision taken by the EU’s trade mark office in 2003 to approve Mars’s application to register the Bounty’s shape as a trade mark across Europe.
The German manufacturer has been making chocolate-covered coconut bars for British supermarkets like ASDA since1990 and claimed it was making 14 million bars a year. Nestle Rowntree supported the Germans claims at various times.
In 2007 the trade mark office binvalidated the trade mark on the grounds that it was not distinctive enough since the shape “does not depart significantly from the norms and customs of the relevant sector”.
The Court of First Instance acknowledged that a shape could be trademarked if it had acquired distinctive character through usage.
For the shape of a product to qualify to be registered as an EU trademark, 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”. Apparently, without it’s wrappings, the Bounty bar is simply not distinctive enough.
I must admit, that when compared to say, Curly Whirly, Tottiffee or Toblerone, there is something, well candybar shaped about Bounty.