While most people are used to words, phrases and logos being protected by trademarks, candy companies have also applied for (and successfully registered) trademarks that protect the design of their confections. However, not all designs can be protected, as Nestle recently discovered in the European Union when their attempts to register the shape of the Kit Kat bar was thwarted.
Josh Gerben was quoted by TIME Magazine, discussing the difficulty in determining distinctiveness regarding shape trademarks:
“The government has a lot of discretion. The general rule is that the applicant must prove it has ‘acquired distinctiveness’ in the trademark before the shape can be registered,” […] “The process of deciding if a shape has ‘acquired distinctiveness’ is incredibly subjective. It’s basically squarely up to one examiner to decide each case, and, the result could easily be different from one examiner to another.”
“When you have these off-the-beat trademarks — you can also trademark a sound, or a color — one of the things the government is concerned about is awarding exclusive rights on a shape, sound or color that other companies might want or need to use,”
Article: Wilson, C. “Inside the Fight to Trademark Candy Shapes in America”. TIME.com. August 6 2018.