Milka wants to contest Ritter Sport in front of the BGH

"Square. Practical. Good." For five decades, Ritter Sport has relied on the catchy advertising slogan and even longer on the characteristic shape of the chocolate bars. That is why the company has had trademark protection on the square shape since the 1990s. But competitor Milka has been contesting her privilege for ten years – and is obviously interested in offering her chocolate with the purple cow in the square. Now the Federal Court of Justice (BGH) is dealing with the "chocolate war" for the second time.

The Federal Patent Court last decided in 2018 that Ritter Sport may retain trademark protection. Milka is now defending itself against this judgment in front of the BGH. Alfred Ritter GmbH sees itself as right: "For many years, the vast majority of consumers have associated the Ritter Sport brand with square-packed chocolate – even if the bar is wrapped in white foil Logo or lettering is packed, "Ritter said in a background information on the upcoming BGH decision. Why do customers buy this chocolate? The crux of the dispute is the question of whether only the shape of the chocolate square" gives the goods an essential value ". Because according to the law, this is an absolute exclusion criterion for brand protection. The regulation is intended to prevent companies from being able to secure a monopoly over the long term on a design whose use would also be important for the competition.

During the trial, judge Thomas Koch presumed that the consumer would perceive the square shape as proof of origin. The crucial question, however, was whether he would buy the chocolate mainly from an aesthetic and functional point of view. The marketing strategy with the well-known slogan also played a role in assessing the case, and Ritter's lawyer argued that nobody bought the chocolate just because of the shape. "It's about the quality, the ingredients, the consumption is important." This was also proven in a survey, the company wrote in a press release.

Milka's lawyer, on the other hand, held that Ritter Sport's success was based heavily on the slogan, which was aimed very much at form ("square") and functionality ("practical"). The taste does not really differ from the corresponding Milka varieties. A spokeswoman for the Milka group Mondelez described the square as a "universal and common form" on request from SPIEGEL (…). It is therefore important to us to maintain legal certainty as to whether companies are allowed to market and sell square products. "The company did not answer the question of whether Mondelez was planning to offer its classically rectangular chocolate bars in a square.

Other companies also have the three-dimensional shape mark that Ritter has on the square: for example Ferrero with the milk cuts or Lindt with the golden rabbits. However, the protection requirements for the registration of a three-dimensional trademark are very high, says Til Huber of the German Patent and Trademark Office. A trademark grants its owner many rights. The examiners in the trademark office are therefore careful to avoid inappropriate monopolyings. "This would be the case, for example, if we protect a form that other suppliers of the goods also need." Put simply, a form that can be protected must be so different that it is actually perceived as a brand. The BGH ruling on the "Chocolate War" is expected in the next few weeks.
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