It is frequently becoming more and more difficult to remember all the topics we’ve covered here over the last — almost — nine years. A recent Snickers end cap display jogged my memory:

Turns out, eight months into this little adventure we call DuetsBlog, I wrote a blog post called Delicious Trademarks: Candy Bar Cross-Section Trademarks? Then, a year later I wrote this one.

My only friendly amendment to the above point of sale end cap convenience store display is to swap the ™ notice for the coveted (or not so, under certain circumstances) ® registration symbol.

Wow, I have been asleep at the switch on this topic, my sincere apologies dear readers. Nearly a year after my second post on this topic, Mars filed an application to register this trademark:

After a couple rounds of descriptiveness office actions, Mars was able to persuade the Trademark Office that the claimed non-verbal candy bar depiction had acquired distinctiveness.

But, that wasn’t the end of the story, because as is often the case when unusual trademark protection is sought, a direct competitor came knocking, in this case, Hershey Chocolate opposed.

Our friend Marty Schwimmer over at the Trademark Blog was johnny-on-the-spot back in 2013 as Hershey opposed the day before Halloween, while I was distracted with this cheesy topic.

The functionality opposition continued for roughly three years until Hershey was able to extract some pretty sweet concessions from Mars, as revealed in this Consented Withdrawal of Opposition Without Prejudice Contingent Upon Amendment of Application.

So, after a little interpretation and modification by the Board, the registration issued with these express limitations:

“The mark consists of a cross-section of a candy bar showing layers within the candy, namely, a middle light brown layer containing several tan-colored peanut shapes and a bottom tan layer, all surrounded by a brown layer. The mark depicts a distinctive two-dimensional cross-sectional view of a candy bar.”

“No claim is made to the exclusive right to use the following apart from the mark as shown: THE SELECTION OF CANDY BAR INGREDIENTS DEPICTED IN THE MARK OR TO THE CONFIGURATION OF A CANDY BAR CONTAINING THOSE INGREDIENTS, EXCEPT AS DEPICTED IN THE APPLIED-FOR MARK.”

Now, there’s a mouthful. Suddenly, the actual issued trademark registration, doesn’t seem all that non-traditional, non-verbal yes, but clearly a two dimensional slice of, let’s say, non-configuration.

Given that, would you be speechless explaining to a client (anyone other than Hershey) what it can and can’t do in advertising food looking something like that when broken in half?

Another question, why doesn’t the end cap display of the cross-section match the drawing of the registered mark? For what it’s worth, I’m more tempted by the end cap than the registration.

Last question, what about Mars’ representation that the claimed mark “always appears in exactly the same manner when used by Applicant.” Maybe it was true when made, don’t know for sure.

Marketing has always been an exercise in getting consumers to make a connection with a brand.  As our friend Seth Godin once said “Marketing is no longer about the stuff that you make, but the story that you tell.”   With the widespread use of social media like Twitter, Facebook, and Instagram, those stories are getting more and more personal — and so is the packaging now.

There was the #ShareACoke campaign, with Coke cans with first names or words like “Soulmate” for you to share with a friend, family member, colleague, or stranger.   After launching this campaign, Coca-Cola says that they received about a 2% bump in sales.

Then recently Bud Light introduced cans for each of the NFL teams as part of its #MyTeamCan (a social media hashtag that seems like it could go awry any given Sunday).  Would a Bears, Vikings, or Packers colored can inspire you to buy Bud Light over Miller Light or Coors Light?  Are we going to see fantasy football team inspired packaging?

Another example is Snickers re-packaging as part of its #EatASnickers campaign.  Does anyone else wish that they made a “Hangry” one?

Snickers_Hunger_Bar_Print_Final[1]-1

Contrary to the Coke and Bud examples, Snickers appears to scrub any reference to its registered mark SNICKERS and relies solely on its trade dress — the brown background with the white parallelogram with a red border and blue lettering.  Based on a brief search of the U.S. Trademark Office records, no filing has been made to protect this trade dress, importantly without the SNICKERS name.  Someone please call the logo police.

Two years ago, I wrote about a potential  trend towards de-branding packaging, but we certainly didn’t see the “silent” branding take off.  Perhaps this personalized trend and its accompanying social media is its “loud” branding antithesis.

What do you think about this trend toward personalized products, from either a branding perspective or a supply chain management perspective?  Is personalized branding just a hot trend thanks to the popularity of Instagram and Twitter?  Of the three strategies mentioned in here, which do you think works best (for me its the Coke one)?

Jason Voiovich, author of the “State of the Brand” & Vice-President of Marketing for AbleNet, Inc.

It sounds like something I’d get wrong in a game of "Trivial Pursuit".

Name the belated military attempt of King William I to restore his position as monarch over the Belgians. I might have guessed the delicious-sounding "great chocolate war". It sure sounds better than the "Ten Days Campaign", but isn’t nearly as tasty.

But a "great chocolate war" is exactly what’s stirring between candy enemies Hershey Co. and Mars Inc. The former makes the ubiquitous and irresistible Reese’s peanut butter cups. The latter makes Snickers, M&Ms, and Dove chocolates. Also yummy. But the skirmish isn’t over deliciousness, it’s over something much more mundane: Packaging. And none of the lawyers are laughing.

Last week, Hershey’s lawyers went to work, filing a lawsuit claiming Dove peanut butter chocolate "Promise" squares packaging piggybacks on the success of Reese’s by using its orange, brown, and tan color scheme.

See for yourself:

Dove and Reese's packaging

Okay. I consider myself a reasonable person. And I have irrational love for all types of chocolate. But I am having trouble seeing what the heck these guys are talking about. I’ll leave the nitpicking around what the Reese’s IP actually covers to the lawyers, but suffice it to say, what other color would you use in your packaging to communicate "peanut butter"?

Green? That’s "mint". Blue? That’s "milk chocolate". Dove already used a lighter shade of orange and yellow for "caramel". Red? Purple? Those seem weird. The orange Dove uses seems to make sense, is in line with the rest of its packaging scheme (other flavors use other colors in the "swoosh"), and wouldn’t be confused for Reese’s by any reasonable person.

What do I think this is really about?

A few things. First, Hershey and Mars are the two 800-pound gorillas in the candy market. For years, they’ve struggled for the top spot, which Hershey recently lost following Mars’ $23 billion acquisition of gum-maker Wrigley. Lawsuits are one way to drain a competitors coffers and force them to respond on your terms versus focusing on their own business (think Sun Tzu).

Second, Mars should have seen it coming. As Hershey worked to make some (necessary) cost cutting moves – including closing some plants and using cocoa butter substitutes in some of its products – the PR folks at Dove thought it wise to take advantage of the situation. It’s "made in the USA" and "pure, rich chocolate" messaging certainly were on-target and competitively appropriate. Methinks Hershey is striking back more out of anger and frustration than any real chance of succeeding in court.

But might there be a deeper issue going on? Could Hershey have a secondary motivation? I’ve been on enough creative teams to know what happens when your work is the subject of a lawsuit. It’s not just demoralizing, but puts you on guard as you work on your next campaign. In other words, how willing will you be to step out into bold creative territory when your last campaign landed your client in deposition hell?

Certainly, if you mention this to a creative type, they’ll be the first to tell you they can "shake it off" and they realize that legal tussles are all "part of the game". However, you can’t underestimate the chilling effect legal action has on the creative psyche. I think Hershey knows exactly what they’re doing. I think they’re putting Mars on notice. Step anywhere close to our creative IP at your peril.

And I think it just might work.

You may recall about a year ago I did a post entitled "Delicious Trademarks: Candy Bar Cross-Section Trademarks?" I was reminded of this a couple of weeks ago when I snapped this photo, capturing what I believe to be the same point of sale display that inspired my original post:

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. 

In case you’re wondering, I still see no sign that Mars is seeking federal trademark registration of any candy bar cross-section, but just days ago, in a different convenience store, I snapped yet another image of a more recent Snickers point of sale display, this one co-branding with the NFL’s Super Bowl XLV, to be played February 6, 2011, in Cowboys Stadium, located in Arlington, Texas.

Still no trademark application (at least, yet), but this more recent point of sale display actually shows a TM notice positioned next to the cross-section image, indicating Mars does, in fact, view the cross-section as a trademark, see the image below the jump, if you don’t believe me.

Continue Reading Snickers Cross-Section Trademark Notice

With more than a little help from Betty White and Abe Vigoda, Mars topped USA Today’s AdMeter for 2010 Super Bowl television advertisements.

For anyone out there who thought Abe Vigoda had passed on, and Mars’ ad was just another technological resurrection of a dead actor to sell products, like me, you’re operating on old and incorrect information, really old and incorrect information.

People magazine apparently jumped the gun back in 1982, and I never caught the correction or the many running jokes that followed his premature obituary. OK, so I apparently missed every one of his film and television appearances since then too.

While we’re on the subject of missing information, for those of you who never caught my previous post about whether Mars could pursue the cross-section of a Snickers candy bar — as a trademark — here you go. For those of you who never caught Dan’s post about Snickers apparent efforts to establish non-traditional trademark rights, here you go.

Note the prominent candy bar cross-section in the final scene of the Snickers commercial?

Mars, us hungry trademark types are waiting. . . . 

UPDATE: AdvertisingAge reports that Snickers ad tops Nielsen IAG Ad Ratings too.

Gift Chocolates on any Occassion - Pack of 24 - Snickers Crispy,Crunchy Choclates

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?