Tuesday, July 03, 2012

Chocolate Wars: Hershey v. Trader Joe's

Configure this !?...

Hershey recently won a reversal of a USPTO refusal of its product configuration trademark application for it chocolate bar configuration (see below).

 x-ref:  In re Hershey Chocolate and Confectionary Corporation, Serial No. 77809223 (June 28, 2012) [not precedential].

This reversal was comprehensively discussed by our colleague, John L. Welch, on his TTABlog today, at the following link:


Have a look at the Trader Joe's Chocolate bar configuration, however, and you will see it has the same rectangular configuration, including the same 3 x 4 design (see below).

You gotta wonder if the USPTO did any research in the marketplace since there was no evidence offered as to third party use of this same configuration.   Don't they shop at Trader Joe's?!...   :-)    
On this point, the TTAB stated, in part: "Furthermore, while the record shows an extensive variety of shapes and decorative designs for candy bars, there is no evidence that this particular combination of recessed rectangles with a raised border is used by other candy makers or that the overall design is in any way functional." (emphasis added).  We do not imagine that Hershey is unaware of the Trader Joe's configuration since it is their business to know their competition. Yet, there is no evidence of this knowledge.

Time will tell if these two companies duke it out or let sleeping dogs lie...

William E. Maguire
Los Angeles, Calif.

1 comment:

spyder said...

Neither are all that good in the first place...