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Gepubliceerd op woensdag 8 mei 2002
IEF 7649
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Mars vs. Kraft: Shape of Toblerone is valid 3D mark

District Court Of The Hague,  8 May 2002, 00-2991. Mars Inc. versus Kraft Jacobs Suchard Sa

Trademarks. Kraft is the owner of several three-dimensional trademarks relating to the shape of the TOBLERONE bar, in class 30 for, inter alia, chocolate and cocoa products. Mars intends to market a new chocolate product in the Benelux and elsewhere (if it has not already done so), ‘WAVE,’ in packaging in the shape of an equilateral triangle (with 60-degree angles). Kraft objected to Mars against Mars’ intended triangular shape of the WAVE packaging (not against the shape of the WAVE product as such).

“The conclusion must be that at the time of its filing, the equilateral triangle was distinctive, so that it is suitable for identifying chocolate as originating from a particular company. (…) Insofar as the Court can determine, the relationship between the length of a side of the triangle and the thickness of the triangle in Kraft’s triangular trademark and the same relationship in Mars’ WAVE packaging are not precisely the same. Thus, the trademark and the design are (probably) not absolutely identical, but because the public cannot be expected to recognize this relatively small difference, they should be considered to be virtually identical.”

Read the entire judgment here (judgment made available by Wouter Pors, Bird & Bird).