Objects

Confectionery Receives a Second Design Review

A court stripped one snack of its shape in 2020, and the candy business has been hunting for another way to own geometry ever since.

Clay-diorama editorial illustration of a tray of varied confectionery shapes.

What changes in this design

A reader might see the word confectionery and assume the record explains ingredients, taste, or a way of making or using a sweet. None of that is established here.

Instead, the record stays with appearance. It shows a tall, upright form with a rounded upper end, shallow horizontal ridges, angular sides that widen through the middle, a long curved lower seam or ridge, and an oval lobe at the lower end.

That matters because the picture is the main information being conveyed. It lets someone notice the form's visible features while avoiding unsupported conclusions about what it is made of or how it performs.

The cookie a court called useful

In October 2020 a federal appeals court looked at a thin chocolate-coated biscuit stick and decided nobody could own its shape. The Third Circuit was blunt. Every aspect of Pocky is useful: the stick is easy to hold, the uncoated end keeps your fingers clean. Useful, the court said, means merely useful. It doesn't have to be essential. And trade dress law, the opinion added, is not intended to create patent-like rights.

I keep returning to that last line, because it reads less like a closing than a redirection. If you want patent-like rights in a shape, the court seemed to be saying, then go and get a patent. Confectioners did.

Twelve rectangles and forty-four years of proof

There's a way to own a candy shape as a trademark, and it costs a fortune in evidence. In July 2012 the Trademark Trial and Appeal Board let Hershey register its bar configuration: twelve equally sized recessed rectangular panels, four by three, each with its own raised border. The company had to prove the design wasn't merely functional, then prove shoppers recognised it, using surveys, sales, advertising spend and length of use. It had been selling that grid since 1968.

It can also fail. In July 2018, after roughly a decade of litigation, the European Court of Justice annulled the EU-wide shape mark on a four-fingered chocolate bar, holding that recognition in a substantial part of the territory wasn't enough. It had to be shown across every member state. The shape route works sometimes, at the price of decades.

A Luxembourg office that makes no candy

Which brings me to design patent D1,137,980, issued on August 4, 2026, titled simply Confectionery. It was filed on October 21, 2025, so ten months from filing to grant, which is quick. There is one claim: the ornamental design for a confectionery as shown and described. Seven figures carry it - perspective, front, back, both sides, top, bottom. No inventor appears on the face of the record I pulled. The application number sits in the new 30/ series, opened after the old 29/ series ran out.

The applicant is Soremartec S.A., in Niederanven, Luxembourg. About 74 employees. Its registered line of business is leasing intellectual property, excluding copyrighted works. Its parent is Ferrero International, and it sits inside a group of 572 entities. The company that owns the shape of this candy makes no candy.

It isn't a rare object. The millionth US design patent issued in September 2023, for a dispensing comb. Roughly 138,000 more have followed since, about 48,000 a year.

Filed beside a scored pill

The classification is the part I didn't expect. Alongside the confectionery and chewing gum codes sits A61K9/2072, which covers pharmaceutical preparations in tablet form characterised by shape, structure or size: tablets with holes, break lines, identification marks. The classifiers put this sweet in the same conceptual bin as a scored pill.

That's less odd than it sounds, because American law already treats the shape of a sweet as a legal matter. A 1938 provision, still at 21 U.S.C. § 342, deems a confection adulterated if a nonnutritive object is embedded in it. That's the rule that kept the toy-in-a-chocolate-egg out of the country. The fix, landing nationally in November 2017, was geometry: an egg-shaped package in two separately sealed halves, cream and wafer on one side, toy on the other.

And shape carries a cost. The CDC counted 260,435 poison-centre reports of pediatric melatonin ingestion between 2012 and 2021, a 530% rise, with 83.8% of them children five and under. Melatonin sells as tablets, capsules, liquids and gummies. When a supplement borrows candy's form, form becomes the way in.

The open question

Here's what unsettles me about the timing. In May 2024 the full Federal Circuit threw out the roughly thirty-year-old test for design patent obviousness and replaced it with the looser framework used for ordinary patents. Commentators read that as making design patents materially easier to attack, with broader examiner discretion, and it reaches patents already issued. A design patent granted in 2026 is a weaker asset than the identical one granted in 2023.

So I don't read this filing as a claim about a sweet. I read it as what's left. Trade dress calls candy geometry functional. Trademark wants decades of proof. Food law can treat the inside of a confection as adulteration. The design patent is the last open channel, and it was narrowed 27 months before this one issued. Whether a shape is worth owning on those terms, I honestly can't tell. Somebody clearly decided it was.

Sources

Reporting for this piece drew on the published filing and the references below.

The record, briefly. USD1137980S1, “Confectionery” The checked public record identifies a U.S. design patent titled 'Confectionery'. The reading treats the published title and figure as a visual starting point and does not infer a material, mechanism, or performance claim not established there.

More angles on this

Confectionery, Seen Through the Eyes of a Tiny MuseumAnother reading from the same A23G classification family, cocoa.
The Potato Product Makes Its Entrance in SlicesAnother reading from the same A23G classification family, cocoa.
CPC A23G: CocoaThe official classification family this record was filed into, published in the USPTO Cooperative Patent Classification scheme.
CPC A61K: Preparations for medical, dental or toiletry purposesThe official classification family this record was filed into, published in the USPTO Cooperative Patent Classification scheme.
The Leveling Bar Has a Very Firm Opinion About LevelAnother reading from the wider A01B classification family, soil working in agriculture or forestry.

Read around this one:Public patent record USPTO published figure Patent issue-date index