No copyright protection for chocolate sticks and curls

Chocolate is available in all shapes and sizes: from ‘zeebanket’ (typical Dutch chocolates in the shape of shells) to chocolate letters during Sinterklaas (a ‘saint’ that brings presents to children in the Netherlands, similar to Santa Claus). Chocolate in certain shapes can be protected by copyright if it has an ‘own, original character’ (‘eigen, oorspronkelijk karakter’) and ‘the personal stamp of the creator’ (‘persoonlijk stempel van de maker’). In this case a dispute arose between the two competitors Dobla and Chocolate King about an alleged copyright on two-colored chocolate sticks and curls and stealing of trade secrets regarding the manufacturing process.

Dobla states that Chocolate King infringes on its copyright with its similar creations and went to court. Dobla also states that one of its former employees has infringed his obligation to respect confidentiality. The employee firstly developed a machine for the manufacturing of the chocolate for Dobla and later also developed a similar machine for Chocolate King.
The court in first instance ruled that Dobla’s chocolate creations are not protected by copyright and ordered an expert’s opinion on the alleged infringement of the obligation to respect confidentiality. Dobla appealed this decision.

The Court of Appeal ruled that the chocolate sticks are not protected by copyright. There are many sugary (candy cane) and chocolate decorations that look a lot like these chocolate sticks. They show, in other words, no creative choices of the creator. Regarding the chocolate curls (inspired on a shell) the Court stated that these do show a little hint of creative choices in the combination of the color pattern and the particular shape. The scope of protection is however restricted since there are many chocolate curls on the market. The result is that Chocolate King’s chocolate curl deviates sufficiently from Dobla’s despite the mere difference. With regard to the confidentiality the Court ruled against Dobla and considered that a skilled team could also have, without a doubt, produced Dobla’s products for Chocolate King using reversed engineering. Moreover, the inside of the machinery of the two competitors show many differences. The Court of Appeal upheld the decision of the Court and thus ruled in favor of Chocolate King.

This decision does not mean that chocolate in certain shapes can never be protected by copyright (after all even copyright on blue-white stripes wallpaper was acknowledged in the Netherlands). It does mean however that because of the wide variety of shapes already on the market, protection by copyright is not easily obtained.

Moïra Truijens, counsel

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