[BLT Insight] How Far Does a Shape Trademark Protect a Snack? — What Korea’s Haribo gummy bear ruling and the Toblerone lawsuit show about the scope of shape marks

On October 15, 2026, Kraft Foods Schweiz Holding GmbH, the Mondelēz group company that owns Toblerone, filed a claim in the High Court in London against Catherine’s Originals, a small British maker of vegan chocolate. The dispute concerns the shape of a chocolate bar. The defendant’s O’bar is a bar topped with a single row of rounded peaks. Toblerone’s owner alleges that the O’bar infringes its trademark rights in Toblerone’s row of triangular peaks and amounts to passing off. Catherine’s Originals has said that it disagrees with the claim and will defend it. Its founder has explained that the rounded shape reflects the “O” in “Originals,” which is part of the brand’s wider identity. As of November 2026, the claim has been filed, but the court has not yet ruled on it.

(Left: Toblerone. Right: the defendant’s O’bar. Toblerone has a single row of triangular peaks, while the O’bar has a row of half-oval peaks with rounded tops set on a flat base. Sources: left photo by Evan-Amos, Wikimedia Commons (public domain); right photo from the Catherine’s Originals website. Both photos have been cropped.)

This lawsuit prompted me to look for Korean cases in which the shape of a food product itself was contested as a trademark. I expected most such cases to concern packaging or containers. Instead, I found the Haribo gummy bear case, in which the shape of a single piece of gummy candy was litigated all the way to the Korean Patent Court. Read side by side, the two cases raise the same question: when a company registers the shape of a food product as a trademark, how far does that registration protect it?

A shape must first indicate commercial origin before it can serve as a trademark

Korea’s Trademark Act recognizes three-dimensional shapes as trademarks. However, a mark that consists solely of a sign indicating the shape of the goods in a common manner lacks distinctiveness and cannot be registered on that basis. This rule appears in Article 33(1)3 of the Trademark Act, which also covers descriptive marks and is broadly comparable to Section 2(e)(1) of the Lanham Act. The shapes of snacks and gummies usually fall into this category. The remaining route is to prove acquired distinctiveness through use, that is, to show that long use has led consumers to recognize from the shape alone whose product it is (Article 33(2), the Korean counterpart to Section 2(f)).

The UK KitKat case shows how high this threshold is. Nestlé applied in the United Kingdom to register the four-finger shape of the KitKat bar as a trademark. The Court of Appeal held that it is not enough for consumers to recognize the shape and associate it with KitKat. As Kitchin LJ put it, “These kinds of recognition and association do not amount to distinctiveness for trade mark purposes,” and “the mark itself must be seen as a badge of origin.” The court dismissed Nestlé’s appeal, and the refusal to register the shape stood (Société des Produits Nestlé SA v Cadbury UK Ltd [2017] EWCA Civ 358).

(Left: the specimen of Nestlé’s UK three-dimensional trademark application №2552692 (filed 2010, Class 30),
which shows only the four-finger bar shape without any words. Right: an actual KitKat bar.
Sources: UK Intellectual Property Office application record; right photo by Evan-Amos, Wikimedia Commons (public domain))

Haribo cleared this threshold in Korea. Korean Trademark Registration №1183780 is a three-dimensional mark depicting Haribo’s bear-shaped gummy, registered in the name of Rigo Trading. It was registered in 2016 for confectionery in Class 30, and the trademark register records that it was registered on the basis of distinctiveness acquired through use. Toblerone’s row of triangular peaks has also long been registered as a shape mark in the European Union and the United Kingdom.

(Specimen of Korean Trademark Registration №1183780 for Haribo’s gummy bear (three-dimensional mark, Class 30), showing the bear-shaped gummy from five directions. Source: Korean trademark register, Ministry of Intellectual Property)

The Haribo ruling protected only the specific appearance of the registered bear

The dispute began in February 2023, when a Korean gummy retailer filed a petition for a negative confirmation of the scope of rights. This is a Korean trial procedure in which a party asks the trial board to confirm that the product it sells does not fall within the scope of a registered right. Its purpose is broadly comparable to that of a declaratory judgment action for non-infringement in the United States. The retailer asked for confirmation that the bear-shaped gummies sold in its stores fell outside the scope of the Haribo registration. The Intellectual Property Trial and Appeal Board (IPTAB), then part of the Korean Intellectual Property Office (KIPO) and now of the Ministry of Intellectual Property (MOIP), dismissed the petition. The IPTAB found that the gummy shape was used as a trademark indicating the source of the goods and that it was similar to the registered mark (Trial Decision 2023Dang831, April 9, 2024).

The Korean Patent Court, which hears appeals from the IPTAB, took a different view (Judgment 2024Heo12388, February 14, 2025). First, the court held that the retailer had used the gummy shape only as a product design and not as a sign identifying the source of the goods, that is, not as a trademark. It relied on two sets of facts. The first was that the retailer sold gummies in many shapes besides bears, packed them in bags bearing its own mark, and identified each product by naming its shape, as in “bear-shaped gummy.” The second was that, before Haribo filed its application, several companies had already sold bear-shaped gummies in Korea under their own trademarks, including a product launched in 1986.

On the similarity of the marks, the court held that the scope of the registered mark could not extend to the general motif of a bear-shaped gummy and was limited to the specific manner in which the three-dimensional mark expresses that motif. The court then compared the two shapes point by point. The registered bear has somewhat pointed ears, nose, arms, and legs, wears a broad smile, and stands upright. The retailer’s bear is rounded, has a blank expression, and is seated. The outlines and the dot patterns on the belly also differ. The court also noted that, during the trademark examination process, the applicant had itself described the mark as a bear standing upright on its hind legs like a person. In the court’s view, treating the two shapes as similar merely because both can be called gummy bears would unduly restrict other traders’ freedom to choose their own marks.

(Left: front view from the specimen of Registration №1183780. Right: the shape of the Korean retailer’s gummy, the challenged sign in the trial. The court found differences in the shape of the ears, nose, arms, and legs, and in the facial expression, posture, outline, and dot pattern on the belly. Source: Korean Patent Court Judgment 2024Heo12388)

The trademark owner argued that consumers were mistaking the retailer’s gummies for Haribo products and submitted online customer reviews as evidence. The court found that the reviewers had merely been reminded of Haribo and were in fact distinguishing and comparing the two products. The court also noted that the retailer’s gummies were sold in bags bearing a different mark. On that basis, it found the likelihood of confusion to be low and set aside the IPTAB’s decision. The trademark owner appealed. In July 2025, the Supreme Court of Korea dismissed the appeal under its summary dismissal procedure (simni bulsokhaeng), which allows the court to dismiss an appeal that raises no statutory ground for full review. The Patent Court’s judgment therefore became final. The trademark owner has since filed a new action in the Patent Court against the IPTAB’s subsequent decision (Case №2026Heo10102), which remains pending as of November 2026.

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The 2025 Patent Court ruling stands for two propositions. First, even when a shape mark has been registered on proof of acquired distinctiveness, its scope is limited to the specific manner in which the registered shape is expressed. Second, when the same shape is used only as a design, that use is not treated as use of a trademark.

The Toblerone lawsuit raises the same question

In the Toblerone case as well, the fact that the shape is registered as a trademark does not answer the question by itself. Applying the standards of the Haribo ruling, I expect the comparison to focus less on the general idea of a bar with a single row of peaks and more on whether the peaks are triangular or rounded and on how the spacing between the peaks and the base of the bar are expressed. I also expect the parties to dispute whether consumers perceive the shape as an indication of origin.

UK law, however, contains a provision that has no direct equivalent in the Korean scope confirmation procedure. Section 10(3) of the Trade Marks Act 1994 protects a trade mark with a reputation in the United Kingdom against use of a sign where “the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.” This protection does not depend on a likelihood of confusion. Because the Korean scope confirmation procedure focuses on whether the challenged sign is used as a trademark and whether it is similar to the registered mark, a UK court can consider a broader range of issues. Public reports describe the Toblerone claim as one for trademark infringement and passing off but do not say which statutory provisions it relies on.

(Specimen of EU trade mark №000031237 for the Toblerone bar shape (filed 1996, registered 1998, Class 30), a bar with a single row of triangular peaks. After Brexit, a corresponding UK comparable registration, UK00900031237, was created. Sources: EUIPO; UK Intellectual Property Office register)

Food companies have three tools for protecting a product’s shape

A food company that wants to protect the shape of its product itself should plan to use the following three tools together.

The first is a design application filed before launch. Under Korea’s Design Protection Act, a design right extends to shapes identical or similar to the shape shown in the registered drawings, and the owner does not need to prove acquired distinctiveness. As a rule, however, the application must be filed before the design is publicly disclosed. Once the design has been disclosed, an exception is available only within the statutory period of 12 months from the disclosure (Article 36(1)). Variants of the main shape can be filed as related designs within three years of the filing date of the basic design, which extends protection to those variants (Article 35(1)).

The second is registration of a signature shape that has been sold for many years as a three-dimensional trademark. The owner needs to build up evidence of use over time, such as sales volumes, advertising, and consumer recognition surveys. Because the Haribo ruling limited the scope of the registration to the specific manner in which the shape is expressed, using one shape consistently, rather than changing it frequently, strengthens both the evidence and the resulting right.

The third is the prohibition on imitating the shape of another’s product under the Unfair Competition Prevention and Trade Secret Protection Act (Article 2(1)(i)). For three years from the date the product’s shape was completed, the owner can stop others from transferring, exhibiting, or importing products that imitate that shape. However, the Supreme Court of Korea denied this protection for a honeycomb-topped soft-serve ice cream made to order in stores. The court found that each serving differed in height, shape, and size and that the product therefore had no consistent shape (Supreme Court Decision 2015Da240454, October 27, 2016).

(Comparison of three ways to protect a food product’s shape in Korea.
Prepared by BLT based on the Design Protection Act, the Trademark Act, and the Unfair Competition Prevention Act)

Ask yourself whether your company’s signature snack shape is protected, in the exact form consumers recognize, by a design right or a three-dimensional trademark.

What foreign brands should check in Korea

For a foreign confectionery brand entering Korea, a shape registration in its home market does not determine how far the shape is protected in Korea. If the shape is new, a Korean design application can protect it without proof of consumer recognition. The application must be filed before the shape is first disclosed anywhere in the world, or within the 12-month grace period after that first disclosure, so a launch in the home market starts the clock even before the product reaches Korea. If the shape has been sold for many years, a Korean three-dimensional trademark requires evidence that consumers in Korea recognize the shape as indicating the brand. The Haribo ruling indicates that the registered right will then cover the shape as registered, not the general motif. Using one shape consistently in the Korean market supports the trademark evidence. A consistent product shape is also a condition for protection against imitation under the Unfair Competition Prevention Act, and that protection lasts only three years from the date the shape was completed.

BLT Patent & Law Firm.
Karl Taekyun Chung, Partner Patent Attorney
Phone: +82 2–514–0104
Email: info@BLT.kr
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