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Hershey Bar Configuration Mark Allowed

Posted in Non-Traditional Trademarks, Product Configurations

–Dan Kelly, Attorney

Late last month, Hershey Chocolate and Confectionary Corporation won an appeal at the Trademark Trial and Appeal Board to register the following as a configuration mark for use in connection with candy and chocolate:

The decision (opinion here) is straightforward and not precedential.  It is somewhat interesting in that Hershey had already succeeded in registering a very similar mark (below) although this was not addressed by the Board.

The opinion notes the existence of numerous other segmented candy bar configurations and includes the following examples:

Here’s my question:  what scope of protection will Hershey be afforded when it goes to enforce this mark, if ever?  I’m thinking in particular of the adidas “one stripe buffer” on its three-stripe mark (see here and here for prior commentary and discussion).  The Hershey Bar configuration is 4 x 3.  The second and fourth candy bars above are 4 x 2 and 5 x 3, respectively — each identical to the Hershey Bar in one dimension and only one off in the other.  (Interestingly, the 5 x 3 configuration and the 6 x 4 configuration in some sense contain the entirety of Hershey’s 4 x 3 configuration, although not necessarily the entirety of Hershey’s mark.)  It seems to me that in light of these bars, all of which I assume are made by competitors, Hershey will have a difficult time enforcing its configuration mark against other candy bars that fall outside of a 4 x 3 configuration, unless perhaps other designs are very close on the other elements of the mark.

How about the below?  Assuming that it is junior to the Hershey Bar, does it infringe, or is the Hershey Bar configuration already creeping toward genericide?