As a kid I was partial to the simple bas-relief design of the classic Nestlé’ bar.  Once the raised border that surrounded the entire confection had been breached, the size of the next bite was limited only by the size of my mouth.  I preferred to eat one letter at a time, beginning with the final ‘e’ and its puzzling acute accent.  The Hershey bar, in contrast, with its division into individual, separable pieces, seemed overly fussy, as if it had been designed by my mother to discourage gorging, to enforce her edict: “Don’t be a pig, you’ll make yourself sick.  And share some with your brothers.”
When Hershey sought to register its design as a product configuration trademark, the examiner evidently reacted as I always have when offered a chocolate bar, ignoring considerations of visual aesthetics and finding the design functional and therefore ineligible for trademark registration.  On appeal, however, the Trademark Trial and Appeal Board reversed this determination.  Although it agreed that a segmented, rectangular candy bar “serves a useful function to enable the consumer to break the candy bar into smaller pieces for consumption,” the same was not true of “the twelve recessed rectangles with a raised border design in a four by three format.”  These, the Board found, were “decorative elements,” rendering the configuration as a whole “not essentially functional” and therefore eligible for registration.

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