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Delicious Marks: Candy Bar Cross-Section Trademarks?

Posted in Advertising, Branding, Food, Look-For Ads, Marketing, Non-Traditional Trademarks, Product Configurations, Sight, Trademarks

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A couple of months ago I saw in a convenience store a large Snickers point-of-sale floor-display depicting a prominent and attention-getting cross-section of a Snickers candy bar. Given Mars’ apparent interest in owning and creating non-traditional trademark rights surrounding the Snickers brand (revisit Dan’s post from earlier this year), it made me wonder whether Mars might view (and want consumers to view) the cross-section of the famous Snickers candy bar as a trademark too. After all, trademarks are one form of intellectual property that can last forever, so long as they continue to be used in commerce. In case you’re wondering, I couldn’t find any indication that Mars has sought to register any candy bar cross-sections as trademarks.

Now, keeping in mind, to be a non-traditional trademark, the symbol or device must (a) identify the goods, (b) distinguish the goods from those of others, and (c) indicate the source of the goods, there appears to be (at least) some potential for treating candy bar cross-sections as trademarks, provided the cross-sections actually are used as trademarks in commerce. In other words, it’s not enough that the bars could be sliced to view their otherwise purely internal cross-sections; depictions of the cross-sections would have to appear on packaging or at least point-of-sale materials (advertising alone won’t cut it).

So, to satisfy a court’s hunger for the "use in commerce" requirement, and if depicting the candy bar cross-section on packaging leads to a creative buzz-kill, then a prominent cross-section on point-of-sale displays should suffice. Having said that, given the non-traditional nature of a cross-sectional trademark, perhaps some "look-for" advertising might be just what the candy man ordered to help create the cross-section as a delicious new non-traditional trademark. The Candyblog certainly enjoys showing cross-sections of candy bars in discussing the pros and cons of the various goodies they review.

What about functionality, you ask? Yes, if the depiction of the cross-section is determined to be functional, then it can never serve or be protected as a trademark. What do you think, is it functional? While the taste of the candy bar is clearly functional, the appearance of the cross-section is far less clearly functional. For example, presumably taste would remain unchanged so long as the ingredients remain constant, even with multiple variations on the internal configuration and layering of those ingredients.

There are actually some on-line quizzes you can take to test your visual sweet tooth skills, on Slashfood, here, and The Science Museum of Minnesota’s Thinking Fountain, here. Some are easier than others. Now, to the extent consumers are able to "name" the candy bar associated with the shown cross-section, does that help satisfy all three trademark elements or only the first two? And, to avoid the leading nature of the question (as criticized in a U.K. trademark opposition brought against Mars involving candy bar appearance) would it make sense to first ask respondents whether they are able to determine who put out the candy bar in question by only seeing its cross-section?

On a related note, Mars is currently soliciting video content "starring" Snickers, so perhaps some creative type will accept the assignment, and in the process, author some powerful "look-for" advertising to help Mars acquire and build non-traditional trademark rights in the Snickers cross-section. If I were to accept the assignment, my submission would be to depict nothing but the cross-section of a Snickers candy bar within the non-traditional federally-registered parallelogram shape, but then, I’m a trademark type with only limited creative abilities.

So, can you identify a Snickers bar and distinguish it from others by the cross-section alone?

Do you believe consumers perceive the cross-section as a trademark pointing uniquely to one single brand?

  • VERY interesting thoughts. After taking the Slashfood quiz (17 out of 20 correct), I would think that this would be a trademark issue for many candy companies to seriously consider.
    Aren’t their “processes” for making the candy available for patent? If so, the outcome across the board means that “cross-sections” can be readily identifiable to consumers and tied to their trademarked brand name and identity.
    And while we, at the Candy Store, enjoy our candy…we don’t market it. ;-)

  • Fascinating. Proprietary trade dress is defensible for the outside of a product, so why not the inside? The inside of a product effectively becomes the outside when a cross-section image is used in marketing or whenever it’s eaten (assuming Snickers is rarely swallowed whole). If the inside is distinctive enough, it would acquire secondary meaning and be exclusively associated with one product.
    But I don’t think it’d be easy to protect. Part of the reason is dilution. The candy manufacturing process probably lends itself to layering ingredients rather than blending them. Therefore, many candies will have layered ingredients, so what might be trademarkable is a specific schematic of the layers. However the food manufacturing process isn’t very precise — not like microprocessor fabrication for instance. Variations in the thickness of layers, degree of ingredient miscegenation, etc. make distinctiveness difficult.
    Furthermore, there’s only so many ways you can layer roasted peanuts, gooey caramel and fluffy nougat in blanket of delicious chocolately goodness so…um…uh…
    Sorry. Got distracted there for a minute.
    I’m sure there’s a point in there someplace.

  • It’s not enough that the bars could be sliced to view their otherwise purely internal cross-sections; depictions of the cross-sections would have to appear on packaging or at least point-of-sale materials (advertising alone won’t cut it. The Candy log certainly enjoys showing cross-sections of candy bars in discussing the pros and cons of the various goodies they review. The candy manufacturing process probably lends itself to layering ingredients rather than blending them. Therefore, many candies will have layered ingredients, so what might be trademark able is a specific schematic of the layers.Thank you for sharing