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Trade dress protection for Valentine's Day offerings

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It's that time of year again when stores are awash in red and pink hearts. Valentine's Day is here and with it comes holiday spending. About 54% of American's will be participating in Valentine's Day celebrations and gift exchanges. Estimated at around $18.2 billion or roughly $137 per person, Valentine's Day spending is dwarfed only by Christmas and Halloween.

A small portion of that figure will be spent on candy and chocolates. Candy sales account for $1.7 billion of Valentine's Day sales. Given the amount of money at play, it is no surprise that candy makers want to protect their creations.

The sweeter side of IP

Sweet treats and heart shaped edibles and packaging are cropping up on store shelves, but most people do not associate Valentine's Day with intellectual property. However, the confectionery industry has long been tied to intellectual property and candy makers go to great lengths to protect their products and trade secrets from competitors.

Although he didn't patent it, Richard Cadbury of Cadbury Chocolates fame is credited with first producing the iconic heart-shaped box. The boxes were saved long after the candy was gone and used to store mementos. Cadbury missed an opportunity on patenting the heart-shaped box, but his confectionary creations were eventually protected. A search of the United States Patent and Trademark Office (USPTO) Trademark Electronic Search System for "Cadbury" yields over 40 results for different trademarked chocolate confections.

Milton Hershey, founder of the Hershey Chocolate Corporation patented the chocolate bar in 1906. Later on, Hershey trademarked Hershey Kisses. In 1996 Hershey attempted to trademark the word "Kisses", but the request was denied. A successful appeal was mounted and, in 2000, the USPTO Appeals Court approved the trademark.

Trade dress protections for confections

The USPTO system is chock full of patented heart-shaped products and packaging. While traditional trademarks consist of words or graphic designs -- or more often a combination of both --, non-traditional trademarks encompass scents, tastes, shapes and colors.

Trade dress refers to the overall look and feel of a product which distinguishes it from others. Trade dress is a nonfunctional product aspect and cannot be essential to the product's usage. Trade dress protections can be used to protect packaging and the appearance of products. The protections are used to prevent a consumer from buying a product under the mistaken idea that it was another.

If you are a designer, learn how trade dress protections can help you.

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