Ritter Sport
defends
the square.
Ritter Sport
defends
the square.
by
Can an oat bar be sold in an almost square package if Ritter Sport has registered precisely this shape of packaging as a trademark? And are a unique product name and a city motif on the package sufficient to distinguish the product?
Dismissed by the Regional Court, upheld by the Higher Regional Court
In January, we reported on the dispute over the MONNEMer QUADRAT oat bar. On one side is the owner of the Ritter Sport trademarks. On the other side is a Mannheim-based manufacturer of organic oat bars. The dispute centers on the “Cocoa Hazelnut” and “Coconut Almond” varieties. Both come in an almost square tubular pouch with sealed side flaps.
The Stuttgart Regional Court had dismissed the lawsuit. The Stuttgart Higher Regional Court sees the case differently on nearly every point. It has granted the lawsuit in its entirety. The bar manufacturer may no longer use the two types of packaging in Germany.
What does Ritter Sport’s shape trademark protect?
The basis for this is a three-dimensional trademark owned by Ritter Sport. It therefore protects a shape, not a word or logo. The trademark was filed on December 4, 1998, and registered on August 28, 2001, for chocolate bars. The registration is based on acquired distinctiveness through use in the marketplace. This means that the shape only became an indicator of origin through many years of use on the market.
The trademark depicts a square package with two flat side flaps, the edges of which feature a fine zigzag pattern. There is also a flat flap on the back. The trademark contains no colors or printed designs. The current proceedings centered on the scope of protection under trademark law.
Higher Regional Court Affirms Likelihood of Confusion and Protection Based on Reputation
In its ruling of November 5, 2026—Case No. 2 U 3/26— the Stuttgart Higher Regional Court (OLG Stuttgart) amended the ruling of the Stuttgart Regional Court (LG Stuttgart) dated January 13, 2026—Case No. 17 O 192/25. It bases the prohibition on two pillars. The first is the likelihood of confusion. The second is the extended protection of well-known trademarks against the unfair exploitation of their reputation.
The likelihood of confusion depends on three factors that influence one another. The decisive factors are the similarity of the goods, the similarity of the marks, and the strength of the earlier trademark. On all three points, the Higher Regional Court reached a different conclusion than the lower court.
Are chocolate and oat bars similar goods?
The Regional Court had ruled that the goods were not similar. It held that granola bars are considered a healthy source of energy, while chocolate bars are considered a luxury food. Furthermore, the court noted that they are located in different sections of the supermarket and have different main ingredients.
The Higher Regional Court, on the other hand, assumes that the products are at least averagely similar. Both products are sweet, ready-to-eat foods with a high sugar content. The distinctions between them are almost blurred, for example, in the case of chocolate with whole nuts or chocolate-coated bars. Both are eaten as snacks or for energy, such as while hiking, and are essentially interchangeable.
The Senate did not accept the argument that the target audience consisted of health-conscious consumers who avoid refined sugar, noting that this represented a marginal segment. The court held that the average consumer—who buys chocolate and snacks in addition to healthy foods—is the relevant group. The court also found close overlap in terms of distribution. In drugstores, gas stations, and train station kiosks, chocolate and granola bars are regularly displayed side by side. The Regional Court failed to recognize this.
Does a slight rectangular shape make the difference?
The Regional Court had described the bar’s packaging as more rectangular, taller, and airier. The tabs and zigzag patterns also differed. The Higher Regional Court, however, considers the marks to be more similar than average.
The sides of the bar wrapper have a ratio of about 6 to 7. The longer side is thus only slightly more than one-sixth longer than the shorter one. While this difference is noticeable, it is much closer to a square than the rectangular wrappers used by other major chocolate brands. The embossed side flaps reinforced this similarity. Differences in the embossing and the absence of the larger notches, on the other hand, played hardly any role.
Consumers generally do not notice these differences in the context in which they encounter the defendant’s product.
The customer does not see both packages at the same time. Moreover, when it comes to an inexpensive everyday product, he pays little attention to details. The Senate did not share the impression that the packaging looked more airy.
Why don’t the name and the water tower help?
The Higher Regional Court emphasizes that an abstract design trademark does not preclude every competing design. A competitor could create an overall impression through the rest of the design that rules out any likelihood of confusion. However, the bar manufacturer’s design is not sufficient to achieve this.
The vast majority of shoppers do not recognize the Mannheim Water Tower. Only those familiar with the local dialect understand the term “MONNEMer.” Nor is the term “Quadratstadt” commonly used in Germany. The printed square frame and the word “Quadrat” in the product name actually strengthen the connection to the trademark. Most consumers interpret the “Wacker” imprint as a common adjective rather than a manufacturer’s designation. The candy bar manufacturer’s own trademarks—which were not registered until 2026—did nothing to change this. Viewed as a whole, the trademark is closer to the plaintiff’s trademark than it is distinct from it.
How strong is the trademark really?
The court finds that the Ritter Sport trademark has a very high degree of distinctiveness. It bases this finding on a consumer survey conducted in March 2025. According to the survey, 64.0 percent of the total population and 67.5 percent of purchasers and consumers associated the neutral packaging design with Ritter Sport. Added to this is decades of advertising using the slogan “Square. Practical. Good.”, which the Senate is familiar with from its own experience.
The court rejected the claim that the trademark had been diluted by similar packaging from other manufacturers. The burden of proof for this lies with the infringer, and the requirements are high. Most of the examples presented differed significantly from the trademark in question. For others, a substantial presence in Germany had not been demonstrated. Two wafer products were even further removed from the trademark than the bar packaging and were therefore not considered.
What role does the slogan “Square. Coconut. Clear.” play?
The Regional Court had excluded the candy bar manufacturer’s advertising slogan because it was not at issue. The Higher Regional Court, however, considered it as part of its reasoning. The slogan was apparently modeled after Ritter Sport’s advertising slogan. Both phrases consist of three words without a verb, begin with “Quadratisch,” and have the same intonation.
The Senate views this as evidence of the shape trademark’s distinctiveness. At the same time, the slogan demonstrates that the candy bar manufacturer deliberately sought to capitalize on the pull of the well-known trademark. This constitutes an unfair exploitation of another’s reputation without a legitimate interest. The court left open the question of whether there was also a transfer of image. It rejected objections based on packaging law and an alleged need to keep simple basic shapes available for general use.
What does this reversal mean in practice?
In our submission to the court of first instance, we had noted that the general public does not associate every square candy with Ritter Sport. This took into account the Regional Court’s position at the time. The Higher Regional Court has now reversed this position by 180 degrees. According to the appellate ruling, competitors’ creative leeway is now significantly more limited.
The Higher Regional Court does not say that every square-shaped confectionery product constitutes an infringement of the trademark. However, it does illustrate how little effect a slight deviation from the basic shape and a unique name on the packaging have when the earlier trademark is very well known. For companies, this raises the following points:
- Research three-dimensional trademarks. Before designing packaging, you should check the trademark registry for three-dimensional trademarks as well, not just word trademarks.
- Ensure sufficient distinction through design. A custom imprint does not replace sufficient distinction in proportion and design.
- Avoid allusions. Product names and slogans that resemble a well-known trademark can be used as evidence against you.
Prepare evidence. Trademark owners should have ready access to consumer surveys and evidence of market presence. Anyone claiming dilution must specifically demonstrate the market significance of the third-party products.
This applies to the registration of trademarks for one’s own packaging as well as to the defense against or prosecution of trademark infringement.
Conclusion
For Ritter Sport, the ruling is a major success. For the opposing party, it is a bitter defeat.
Both courts assessed consumer understanding based on their own expertise and reached opposing conclusions. This shows that one can never be entirely certain in these proceedings, as the courts’ subjective assessments carry significant weight.
This case highlights the challenges associated with shape trademarks. When is there a likelihood of confusion in this context, given that the markings are completely different? The Higher Regional Court requires distinctive features that clearly indicate a different manufacturer. However, it remains unclear what those features might be. There remains a tension between the protection of a simple geometric basic shape and competitors’ interest in its free use.
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