It was a sweet victory for Hershey when the Board reversed a finding that Hershey’s chocolate bar design, defined by Hershey as “twelve (12) equally-sized recessed panels arranged in a four panel by three panel format with each panel having its own raised border within a large rectangle,” was merely functional. In re Hershey Chocolate, Serial No. 77/809,223 (June 28, 2012).

After considering all of the elements of the design, the Board determined that although certain aspects of the product configuration are functional, the design as a whole is not essentially functional. “[E]ven if certain features found in applicant’s candy bar design are functional and common to other candy bars, it does not necessarily follow that the overall appearance of applicant’s candy bar configuration is functional.” Moreover, the Board agreed with Hershey that its confectionary design had acquired distinctiveness, given its considerable sales figures and advertising expenditures, extensive use and survey results (showing 42% of the participants accurately recognized Hershey as the source of the product design).