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,”