"Square. Practical. Good."

Ritter Sport remains the only square chocolate. The Federal Supreme Court (BGH) has ruled in the last instance that the characteristic packaging shape can continue to be protected as a trademark (AZ I ZB 42/19).

Milka (Kraft Foods/Mondelez) has been trying to take action against the square chocolate shape for ten years. The two three-dimensional shape marks, which were registered for the trademark owner in 1996 and 2001, have since been protected as signs for the product "chocolate bars" which are accepted by the trade. These are the respective neutralized packaging of the chocolate bars.

In principle, there is always a ground for refusal if the mark consists exclusively of a shape "which gives substantial value to the product". The BGH was unable to establish this in the case of the square shape of Ritter Sport chocolate.

The BGH justified its view by stating that registered trademarks do not exclusively consist of a shape which gives the product an essential value. The only essential characteristic of the packaging of goods registered as trademarks is their square base area. However, those do not confer any substantial value on the packaging. The consumer sees the packaging as an indication of the origin of the chocolate and thus has expectations of quality. The shape has no artistic value and does not lead to price differences.

As early as 2017, the BGH had already decided that the trademark of Ritter Sport would remain. The case was referred back to the Federal Patent Court (BPatG), which then decided again in 2018 that the trademark registration would remain.  

For the present decision, the Ist Civil Senate of the BGH has now rejected the appeal and the associated cancellation requests as unfounded.

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