Sarah C. Rich explains how earlier this year, the chocolate maker won the right to "legally protect the physical design of their bar":
Anyone who has bought a stack of Hershey bars for a fireside s’mores binge knows that the 12-rectangle grid is great for snapping off just the right size chunk to match up with the perforated platform of a graham cracker. In other words, its scored surface is highly functional. But functionality is explicitly not a qualifying feature when registering a product design for a trademark. … Perhaps their best piece of evidence came inadvertently through cookware retailer Williams-Sonoma, who had started marketing a brownie pan in the shape of a Hershey bar, featuring the word "chocolate" in each rectangular segment where normally "Hershey" would appear. They did Hershey a solid, demonstrating their faith that consumers would think of the stalwart brand simply by seeing that 12-cell grid.
Why it matters:
Well, for product designers and producers of any consumer good, Hershey’s attainment of a trademark for their candy bar’s physical structure sets an interesting precedent. It has long been difficult for companies to trademark product designs when the notable features are essential to the object’s function. Hershey’s relied on very subtle nuances in their design, as well as more than a century of established brand recognition, to sidestep the argument that segmenting their bars was a utilitarian move. For designers creating a new product "inspired by" a classic, the case is also a cautionary tale.
The Dish 