Its square packaging is Ritter Sport’s distinguishing feature. The brand has been promoting its chocolate bars using the familiar slogan “Quadratisch. Praktisch. Gut.” (in English “Quality. Chocolate. Squared.”) for decades. The company Alfred Ritter GmbH & Co. KG based in Waldenbuch near Stuttgart had the characteristic packaging protected as a trademark in the 1990s. The consumer goods company and maker of Milka, Mondelez (formerly Kraft Foods), had been attempting to have this trademark protection cancelled for ten years. Germany’s Federal Court of Justice (BGH) has now ruled definitively that the square shape remains exclusively reserved for Ritter Sport, thereby dismissing the case brought by Mondelez. As the court of last instance, the First Senate confirmed that the square shape of Ritter Sport could remain protected as a trademark. Had this trademark protection been cancelled, other chocolate manufacturers would likewise have been authorised to sell square bars of chocolate. Following a long legal battle in front of the German Patent and Trademark Office and the courts, Milka has ultimately failed in its endeavours to overturn its competitor’s monopoly on the unmistakable packaging form (ref. no. I ZB 42/19 inter alia). The BGH had already ruled that Ritter should keep its trademark protection in 2017, with the Federal Patent Court reaching the same conclusion in 2018. But Milka was not willing to accept this decision. The trademark protection relates to a blank piece of packaging which is neutral and without any overprinting, but with the typical side flaps and the longitudinal seam on the back for bending open. Experts talk of a three-dimensional brand or a shape mark. The round of the legal dispute now ruled on hinged on the question as to whether the shape alone constituted an “essential characteristic of the product”, which would have absolutely ruled out trademark protection. The purpose of this ruling is to prevent companies from securing a monopoly on a design the use of which would also be important for its competitors. The federal judges have now ruled that this is not the case for Ritter Sport.
