Candy Wars – Hershey Company opposes Mars’ trademark application for cross-section of Snickers bar

            Mars Inc. is attempting to trademark a cross-section of their Snickers bar for use on in-store displays.  The Hershey Company has filed an opposition to the trademark application claiming that the design mark is not distinctive, is functional and generic.

          In their application, Mars claims that they have exclusively used “a cross-section of a candy bar showing layers within the candy, namely, a middle light brown layer containing tan-colored peanut shapes and a bottom tan layer, all surrounded by a brown layer.” Hershey points out that several companies manufacture similar candy bars and use a cross-section of the bar on their packaging. Therefore, Mars’ claim to exclusive use of such a cross-section is a misrepresentation.

Hershey also notes that many candy bars consist of nougat topped with a mixture of caramel and peanuts enrobed in a layer of milk chocolate, including Hershey’s TAKE FIVE®  and ZERO® bars and Nestlé’s OH HENRY! and BABY RUTH candy bars. Therefore, the image is merely descriptive of such candy bars.

 OH HENRY!®Because of the common use of these ingredients by Hershey and others, Hershey alleges that the cross-sectional image is not readily perceived by consumers as an indication of that Mars Inc. is the source of that candy bar. In other words, the image has not acquired a secondary meaning such that consumers only recognize and associate that image as a Snickers bar.  Hershey takes it one step further and alleges that the image is a generic candy bar configuration that is incapable of functioning as a mark.

            Hershey makes good arguments on all fronts. Unlike the clearly recognizable Snickers bar packaging, the cross-sectional image of the candy bar is not distinctively recognizable as a Snickers bar.  The Trademark Trial and Appeal Board will take up the matter soon.