tag:theconversation.com,2011:/ca/topics/cadbury-3994/articlesCadbury – The Conversation2019-03-21T14:19:54Ztag:theconversation.com,2011:article/1139372019-03-21T14:19:54Z2019-03-21T14:19:54ZAs archaeologists, it was our duty to take on Cadbury over ads encouraging kids to dig up ‘treasure’ – and we won<figure><img src="https://images.theconversation.com/files/265116/original/file-20190321-93060-17y0dti.jpg?ixlib=rb-1.1.0&rect=16%2C44%2C3725%2C2446&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Doonagore Castle, which Cadbury incorrectly identified as Mooghaun Fort in its ad campaign. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/round-tower-doonagore-castle-ireland-130088756">Shutterstock.</a></span></figcaption></figure><p>The latest online campaign by chocolate giant Cadbury encouraged children to go “treasure hunting” over Easter. Kids were encouraged to “uncover underwater shipwrecks in Devon” or “dig up Viking silver on the River Ribble”. After discovering the website, archaeologists (ourselves included) launched a <a href="http://bajrfed.co.uk/bajrpress/cadbury-treasure-hunt-fiasco/">call to action</a>, pointing out that such activities might well be breaking the law.</p>
<p>Several of the sites listed were protected monuments, where treasure hunting is illegal. Cadbury named Mooghaun Fort in Ireland, which is covered by very strict national laws, as one of its treasure hunting sites. Any excavation or use of metal detectors in Ireland requires a state-licensed archaeologist. Without one, <a href="https://www.museum.ie/The-Collections/Metal-Detecting-in-Ireland-The-Law">fines can be enormous and lead to prison time</a>. </p>
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<p>Cadbury removed their campaign website two days later. The company now promises to “focus solely on directing families to museums where existing treasures can be found”. So, thanks to the swift response from the heritage community, damage to sites was prevented – unlike a similar incident involving the company in the 1980s. </p>
<p>At that time, a <a href="https://www.dailymail.co.uk/news/article-2230560/Cadburys-calamity-The-22-carat-gold-egg-led-thousands-people-digging-countryside.html">Creme Egg treasure hunt</a> led to members of the public digging up historic sites throughout the UK, in search of a scroll that would entitle them to one of 12 22-carat gold eggs. This treasure hunt was also cancelled, after the company received complaints from landowners. </p>
<h2>The treasure laws</h2>
<p>Britain has probably the oldest and most liberal treasure hunting laws in the world. The common law of Treasure Trove goes back to late Saxon times. When objects of gold or silver were discovered, ownership fell to the Crown. In 1996, the <a href="https://www.legislation.gov.uk/ukpga/1996/24/contents">Treasure Act</a> placed the law on a more modern footing, redefining “treasure” to include prehistoric metalwork, coin hoards and objects made of gold and silver that are at least 300 years old.</p>
<p>People who find such artefacts have a responsibility to declare it to their local <a href="https://finds.org.uk/contacts">Finds Liaison Officers</a> for review. If museums wish to acquire the treasure, a reward is split between the finder and the landowner. Of course, it is not permitted to hunt for treasure on the 20,000 archaeological sites that are protected <a href="https://historicengland.org.uk/listing/what-is-designation/scheduled-monuments/">ancient monuments</a>.</p>
<p>In contrast, throughout much of Europe and the developing world, it’s illegal to use a metal detector for treasure hunting – and so is any form of unlicensed excavation. In Mediterranean countries such as Greece or Italy, where the landscape is bursting with buried sites, tomb robbers face significant criminal sanctions.</p>
<p>While stories in the <a href="https://www.dailymail.co.uk/sciencetech/article-6657067/Iron-Age-chariot-amateur-history-lover-whos-set-pocket-1MILLION.html">media</a> tell of amazing finds, metal detectors are more likely to turn up trivial pieces from the past, such as nails, buttons and ring-pulls. The depth that most detectors reach is seldom more than eight inches in freshly ploughed soil on farmers’ land – soil that would already be considered disturbed.</p>
<p>Yet the way these finds are distributed in the soil can offer clues about the location of new archaeological sites. Working with detectorists, <a href="https://www.york.ac.uk/archaeology/research/current-projects/torksey/">archaeologists at Torksey</a>, in Lincolnshire, were able to pinpoint the location of the Viking winter camp of 872, which led experts to massively increase their estimates of the size of the invasion army.</p>
<h2>Report and respond</h2>
<p>The Portable Antiquities Scheme records many detectorists’ finds, and makes them available to view on a <a href="https://finds.org.uk/database">public website</a>. With over 3m photographs online, it’s a fascinating resource documenting the everyday objects of the past. </p>
<p>The UK’s ambiguous national attitude towards metal detecting and treasure hunting divides archaeologists. Responsible detectorists can be viewed as citizen scientists, helping to create a database of the nation’s rich buried heritage. Many already work together with archaeologists, and we encourage this community of enthusiasts and professionals – and the wider public – to make their voices heard in the <a href="https://www.gov.uk/government/consultations/revising-the-definition-of-treasure-in-the-treasure-act-1996-and-revising-the-related-codes-of-practice">current consultation on the Treasure Act</a> to forge new definitions and guidance on how to explore our shared cultural heritage.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/265090/original/file-20190321-93060-6txdwy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/265090/original/file-20190321-93060-6txdwy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/265090/original/file-20190321-93060-6txdwy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/265090/original/file-20190321-93060-6txdwy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/265090/original/file-20190321-93060-6txdwy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/265090/original/file-20190321-93060-6txdwy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/265090/original/file-20190321-93060-6txdwy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Citizen science in action.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/metal-detecting-field-stubble-114239302">Shutterstock.</a></span>
</figcaption>
</figure>
<p>But treasure hunters who are driven by profit can strip objects of their cultural context and remove them into private collections forever. Even worse are “<a href="http://theconversation.com/history-wars-archaeologists-battle-to-save-our-heritage-from-the-nighthawks-49068">nighthawks</a>”: an illegal fringe group who trespass private land in purposeful efforts to secretly loot archaeological sites. </p>
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Read more:
<a href="https://theconversation.com/history-wars-archaeologists-battle-to-save-our-heritage-from-the-nighthawks-49068">History wars: archaeologists battle to save our heritage from the nighthawks</a>
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<p>One area of concern are detecting rallies, when a farmer may open up his fields for a day and invite all-comers to hunt for treasure. In spite of defined <a href="https://finds.org.uk/getinvolved/guides/rallycode">codes of conduct</a>, hundreds of detectorists may descend on the landscape to be stripped of any finds, within a few hours, with little scope to record them or where they were found, while the objects disappear into people’s pockets.</p>
<h2>Commodifying culture</h2>
<p>There was a missed opportunity for Cadbury to work with archaeologists and engage with the UK’s ancient artefacts and sites as a wonderful cultural resource. The minister for arts, culture and heritage has <a href="https://twitter.com/Michael_Ellis1/status/1108027220218523649">called on the company</a> to redress its transgressions, as have national organisations such as the <a href="https://twitter.com/archaeologyuk/status/1107652242402873344">Council for British Archaeology</a>. In response, <a href="https://www.bbc.co.uk/news/uk-england-bristol-47617110">Cadbury said</a>: </p>
<blockquote>
<p>It was not our intention to encourage anyone to break existing regulations regarding the discovery of new archaeological artefacts and we are grateful this matter has been brought to our attention.</p>
</blockquote>
<p>There are many opportunities for families to explore outdoor sites of historic and archaeological importance, without digging holes in the ground. The network of <a href="https://www.yac-uk.org/">Young Archaeologists Clubs</a> is a great place to start and join an enthusiastic community, who offer a hands-on approach to the past.</p><img src="https://counter.theconversation.com/content/113937/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A swift response from the heritage community prevented damage to sites of national heritage.Aisling Tierney, Research associate, University of BristolMark Horton, Professor in Archaeology, University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1007942018-07-31T14:51:53Z2018-07-31T14:51:53ZKitKat lost its trade mark case: what you need to know<figure><img src="https://images.theconversation.com/files/229974/original/file-20180731-136679-bnupzu.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">KitKat lost its decade-long case to protect its four finger biscuit shape.</span> <span class="attribution"><span class="source">Nestlé</span></span></figcaption></figure><p>Picture your favourite chocolate treat. The brand, the packaging – and sometimes the shape of it – will no doubt come to mind. This is the idea behind trade marks: that consumers can easily identify products or services they want to buy from a company they recognise. If a brand can demonstrate this recognition, it is known as being “<a href="https://www.bl.uk/business-and-ip-centre/articles/a-beginners-guide-to-trade-mark-infringement">sufficiently distinctive</a>” in the market. </p>
<p>Trade marks not only protect consumers with quality and consistency, they also provide a significant business advantage. Other companies can’t use these marks because that would confuse customers and possibly cause reputational or financial damage to the original brand. </p>
<p>Due to the potentially indefinite duration of protection, trade marks can confer significant brand value, so many popular brands have become involved in lengthy court cases when competitors challenge a mark’s validity. As the EU is a <a href="https://www.fooddrinkeurope.eu/uploads/publications_documents/DataandTrends_Report_2017.pdf">global leader</a> in world chocolate production – and consumption – this is no trifling matter for confectionery companies.</p>
<h2>The KitKat crisis</h2>
<p>In July 2018 the more than <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=204401&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1211575">decade-long legal battle</a> to protect the “four-fingered” shape of <a href="https://www.nestle.co.uk/aboutus">Nestlé’s</a> KitKat bar concluded with KitKat losing its appeal against Kvikk Lunsj (owned by Cadbury, now <a href="https://www.mondelezinternational.com/about-us">Mondelez</a>) a Norwegian four-fingered chocolate biscuit. KitKat’s EU shape trade mark is annulled, meaning the Kit Kat shape is no longer a valid trade mark across the EU. It is now only valid in member states where Nestlé has made a successful application as a national trade mark. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/229977/original/file-20180731-136652-1mae111.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/229977/original/file-20180731-136652-1mae111.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/229977/original/file-20180731-136652-1mae111.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/229977/original/file-20180731-136652-1mae111.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/229977/original/file-20180731-136652-1mae111.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/229977/original/file-20180731-136652-1mae111.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/229977/original/file-20180731-136652-1mae111.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Mondelez’ similar four-fingered Kvikk Lunsj which challenged KitKat in court over its shape.</span>
<span class="attribution"><span class="source">Mondelez</span></span>
</figcaption>
</figure>
<p>Some may be surprised to learn that chocolate is a highly litigious subject. A case for Lindt’s gold-foiled chocolate bunnies failed on <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=123102&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13121">distinctiveness</a>, and Poundland’s “copycat” Toblerone bar, Twin Peaks, was <a href="https://www.thegrocer.co.uk/buying-and-supplying/new-product-development/poundland-settles-dispute-with-mondelez-over-toblerone-copycat/559277.article">settled out of court</a>.</p>
<p>Outside of chocolate, litigation has also arisen from less digestible shapes such as <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2017/1729.html">London black cabs</a> and <a href="http://curia.europa.eu/juris/document/document.jsf?docid=82838&doclang=EN">LEGO blocks</a>, in both cases where trade marks on shape were unsuccessfully defended. </p>
<p>Dispute over shapes is complex in trade mark law. It can be a more straightforward prospect to protect a word as a trade mark – and the KitKat name itself is. Marks like KitKat are inherently distinctive, meaning they’re made up, so only have meaning in relation to that brand. But in the case of shapes, distinctiveness may need to be acquired through commercial use and the average consumer associating the shape with the brand. So with the KitKat shape, the court considered whether the use was proved to acquire distinctiveness.</p>
<p>Generally, longevity in a mark is helpful with proving aspects of distinctiveness, but both companies have used the shape in their confections for a long time. KitKat began using the shape in 1935, and Kvikk Lunsj two years later in 1937 (although Nestlé only applied for trade mark registration of the shape in the EU in 2002).</p>
<p>A shape may come to mind when identifying the product, but KitKat runs into problems here because the shape is not visible when you pick it up in its wrapper. Since an average consumer must be able to recognise the brand by a clear and precise trade mark, this can present a higher hurdle for the shape.</p>
<p>An application may be refused or challenged for many reasons, but one creative challenge to the KitKat shape <a href="http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dd3694894f99ff4e1b88b4a47655a076ac.e34KaxiLc3qMb40Rch0SaxuSb3f0?text=&docid=167821&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=366440">came in the UK courts in 2015</a>, when Cadbury argued that the KitKat shape was all to do with a technical or design issue rather than an identifying brand feature – that is, it was designed to allow consumers to easily break one bar into four smaller parts. So if the four-fingered shape was actually fulfilling a function, it couldn’t be a trade mark.</p>
<h2>The EU angle</h2>
<p>Ultimately, the most recent <a href="https://curia.europa.eu/jcms/jcms/Jo2_6999/en/">European Court of Justice</a> (ECJ) decision came down to sufficient distinctiveness. Companies can apply for a domestic trade mark at their national intellectual property office, but how would sufficient distinctiveness be proved when applying for an EU-wide trade mark? An applicant must show that the mark is commonly recognised throughout the European Union, under the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015L2436">EU Directive 2015/2435</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/229984/original/file-20180731-136673-8p7ap3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/229984/original/file-20180731-136673-8p7ap3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=777&fit=crop&dpr=1 600w, https://images.theconversation.com/files/229984/original/file-20180731-136673-8p7ap3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=777&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/229984/original/file-20180731-136673-8p7ap3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=777&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/229984/original/file-20180731-136673-8p7ap3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=976&fit=crop&dpr=1 754w, https://images.theconversation.com/files/229984/original/file-20180731-136673-8p7ap3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=976&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/229984/original/file-20180731-136673-8p7ap3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=976&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">London black cabs were not deemed sufficiently distinctive in court for a trade mark.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-taxi-drivers-demonstration-on-11th-214613737">Shutterstock</a></span>
</figcaption>
</figure>
<p>The EU Intellectual Property Office (EUIPO) granted the KitKat shape mark in 2002 on the basis that KitKat had achieved recognition in ten of the then 15 EU countries. But this newest ECJ decision found that, if the EU coverage is insubstantial or omits a single member state, then the mark hasn’t been proved to have acquired distinctiveness. </p>
<h2>The future</h2>
<p>The ECJ <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=204401&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1211575">decision</a> in many ways is a pragmatic solution, given the challenge of achieving consumer recognition in 28 individual countries. But current trade mark registrations granted on a similar basis as KitKat may also leave existing EU trade marks open to challenge.</p>
<p>This may be good news for chocolate lovers looking for variety in their “technically functional” treats, as there will be more opportunity for competitors to enter the market – although Nestlé still has national trade marks in some countries. It is also likely that, given the stakes, Nestlé will refile for their EU KitKat shape trade mark using new criteria that proves EU-wide distinctiveness in line with the framework of this latest decision.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/230032/original/file-20180731-136667-5oyla8.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/230032/original/file-20180731-136667-5oyla8.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=712&fit=crop&dpr=1 600w, https://images.theconversation.com/files/230032/original/file-20180731-136667-5oyla8.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=712&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/230032/original/file-20180731-136667-5oyla8.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=712&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/230032/original/file-20180731-136667-5oyla8.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=895&fit=crop&dpr=1 754w, https://images.theconversation.com/files/230032/original/file-20180731-136667-5oyla8.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=895&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/230032/original/file-20180731-136667-5oyla8.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=895&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Like KitKat, Lindt’s gold foil chocolate bunny was not considered sufficiently distinctive by the courts.</span>
<span class="attribution"><span class="source">Lindt</span></span>
</figcaption>
</figure>
<p>The trade mark annulment will surely impact the EUIPO’s consideration of applications for trade mark registration and of trade mark oppositions, as this decision holds that proving distinctive character in a substantial part of the territory is not enough.</p>
<p>Shapes, in particular, are a challenge to protect under trade mark law, and recent decisions demonstrate how difficult it can be for a shape to acquire the necessary level of recognition and brand association. New applicants for trade mark protection should perhaps seriously consider creating a mark that is inherently distinctive, rather than a mark that needs to acquire protection through use, like KitKat.</p><img src="https://counter.theconversation.com/content/100794/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Megan Rae Blakely does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s all about being ‘sufficiently distinctive’ and in the multi-billion dollar chocolate business, much is at stake.Megan Rae Blakely, Lecturer in law, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/941512018-03-29T12:39:39Z2018-03-29T12:39:39ZEaster eggs were once a rare luxury – so how did they become so commonplace?<figure><img src="https://images.theconversation.com/files/212622/original/file-20180329-189824-8uxmnf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/still-life-photo-lots-colourful-speckled-97602800?src=VB9-lt_8AwogpEsJW1_1vw-2-84">Shutterstock</a></span></figcaption></figure><p>For weeks (and weeks) in the run up to Easter, brightly packaged chocolate eggs fill the shelves of British supermarkets. Piled high and sold cheap, they are easy to get hold of – even hard to avoid.</p>
<p>But this wasn’t always the case. For almost a century after the first ones were produced in the 1870s by Fry’s and Cadbury’s, chocolate eggs were a luxury product. They were expensive, and difficult to find, with specialist confectioners often requiring orders to be made several months in advance. </p>
<p>The ease of buying an Easter egg changed dramatically for British consumers in the middle of the 20th century, as they appeared in a wider range of retail outlets. Just a few years after the end of wartime rationing, Easter eggs were <a href="https://ore.exeter.ac.uk/repository/handle/10871/9691">widely available</a> in 246,400 outlets and thousands more co-operative shops. </p>
<p>But even then, matching supply and demand was a real headache for both manufacturers and retailers. After Easter Sunday, remaining stock was difficult to sell, potentially wiping out profits. </p>
<p>Shopkeepers did not want to over order because they had much less power over how much they could charge for sweet treats. Manufacturers were allowed to fix the prices of chocolate and confectionery until 1967 through Resale Price Maintenance legislation. If a shop wanted to discount Easter goods after the festival ended, they had to ask the permission of the manufacturer. </p>
<p>Although it sounds like manufacturers had it all their own way, confectionery producers made only slightly higher margins on Easter eggs compared to other chocolate goods – and eggs were much more difficult to make.</p>
<p>Meanwhile, self-service was becoming the major innovation in post-war British retailing. The <a href="https://ore.exeter.ac.uk/repository/handle/10036/4221">number of supermarkets grew</a> from approximately 50 in 1950 to 572 by 1961, and by 1969 there were as many as 3,400. Self-service operations (including smaller stores and supermarkets) accounted for around 15% of grocery turnover in 1959, rising to as much as 64% ten years later. Specialist confectionery shops were worried by the trend – and rightly so.</p>
<p>Then in 1967 the <a href="https://www.tandfonline.com/doi/abs/10.1080/00076791.2017.1400012">abolition of price fixing legislation</a> led to Easter-themed goods becoming increasingly important in the supermarkets’ calendar. Ever since, they have offered cut-price chocolate eggs before Easter to attract shoppers into their stores.</p>
<p>Competing for for the deepest discounts and the largest sales, the pressure switched to manufacturers who had to meet demand, but risk over production.</p>
<h2>How do you eat yours?</h2>
<p>In the 1970s, supermarkets routinely cut the price of Easter eggs, meaning shoppers were shielded from some of the worst effects of inflation and soaring cocoa prices. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/212635/original/file-20180329-189798-87lzkm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/212635/original/file-20180329-189798-87lzkm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212635/original/file-20180329-189798-87lzkm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212635/original/file-20180329-189798-87lzkm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212635/original/file-20180329-189798-87lzkm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212635/original/file-20180329-189798-87lzkm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212635/original/file-20180329-189798-87lzkm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Piled high.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/brent-cross-london-march-6-2018-1039868581?src=xy2m4F7D3NyIpHMY7VjEzw-1-5">Shutterstock</a></span>
</figcaption>
</figure>
<p>Yet despite the difficult economic environment, in 1974, Grocer magazine reported that Cadbury’s aimed to significantly boost its share of the annual Easter egg business, which was worth around £23m. The following year, Cadbury’s hoped to gain 45% of the market with 21 items in its Easter range. </p>
<p>Since the 1980s, manufacturers have invested heavily in technology and production abroad, in a bid to reduce their costs. And to meet supermarket demands for heavy discounts, they have reduced the variety of Easter eggs they produce.</p>
<p>Consequently, the consumer price of chocolate eggs has remained broadly similar for the last 40 years or so. Taking into account retail price inflation, an egg costing two shillings in 1962 should be around £2.20 today, which isn’t too far from what we would expect to pay in most supermarkets for a chocolate egg in 2018 (despite the rising costs of cocoa over the past ten years).</p>
<p>The Easter Bank Holiday is a time when shoppers spend money on groceries, which means that attracting people into stores is a particularly important objective for retail managers at this time of year. One way to do this is through big discounts on traditional chocolate treats.</p>
<p>Nobody remembers resale price maintenance now, but we are left with the effects of this change in supermarkets up and down the country. The cut price Easter egg is now a major feature of our supermarkets – and is likely to stay.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/aHKJQ9DahSY?wmode=transparent&start=68" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Changes in the law and the rise of self-service shopping have provided a huge boost to the total Easter chocolate trade. Worth an estimated £10m in 1960, it has jumped to <a href="http://www.mintel.com/press-centre/food-and-drink/sweet-success-for-seasonal-chocolate">around £364m today</a>.</p>
<p>The real losers from this were smaller sweet shops, who lost out as sales migrated to supermarkets. And although Easter eggs are big business, it is likely that we don’t value them as much today. There is less variety, less novelty and our way of buying them has changed. </p>
<p>And this bountiful supply of cheap chocolate also means we are eating more of the stuff. By some measures <a href="http://www.mintel.com/press-centre/food-and-drink/a-feast-of-innovation-global-easter-chocolate-launches-up-23-on-2017">Britons currently eat</a> an average of 8.4kg of chocolate per year. That’s double the <a href="https://ore.exeter.ac.uk/repository/handle/10871/9691">amount reported</a> before 1967’s pricing rule change – and proves the confectionery industry is still on a roll.</p><img src="https://counter.theconversation.com/content/94151/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adrian Bailey does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A short history of Easter egg economics.Adrian Bailey, Senior Lecturer in Management, University of ExeterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/905182018-02-13T11:45:51Z2018-02-13T11:45:51ZThe ‘real’ St. Valentine was no patron of love<figure><img src="https://images.theconversation.com/files/205774/original/file-20180209-51703-10w4gt5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Relics of St. Valentine of Terni at the basilica of Saint Mary in Cosmedin.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Rom,_Santa_Maria_in_Cosmedin,_Reliquien_des_Hl._Valentin_von_Terni.jpg">Dnalor 01 (Own work) </a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>On Feb. 14, sweethearts of all ages will exchange cards, flowers, candy, and more lavish gifts in the name of St. Valentine. But as a <a href="https://dornsife.usc.edu/bitel-homepage/">historian of Christianity</a>, I can tell you that at the root of our modern holiday is a beautiful fiction. St. Valentine was no lover or patron of love. </p>
<p>Valentine’s Day, in fact, originated as a liturgical feast to celebrate the decapitation of a third-century Christian martyr, or perhaps two. So, how did we get from beheading to betrothing on Valentine’s Day?</p>
<h2>Early origins of St. Valentine</h2>
<p>Ancient sources reveal that there were several St. Valentines who died on Feb. 14. Two of them were executed during the reign of <a href="https://archive.org/stream/scriptoreshistor01camb/scriptoreshistor01camb_djvu.txt">Roman Emperor Claudius Gothicus</a> in 269-270 A.D., at a time when persecution of Christians was common. </p>
<p>How do we know this? Because, an order of Belgian monks spent three centuries collecting evidence for the lives of saints from manuscript archives around the known world. </p>
<p>They were called <a href="http://www.bollandistes.org/thebollandists-hist0.php?pg=hist00">Bollandists</a> after Jean Bolland, a Jesuit scholar who began publishing the massive 68-folio volumes of <a href="http://acta.chadwyck.co.uk/">“Acta Sanctorum,”</a> or “Lives of the Saints,” beginning in 1643.</p>
<p>Since then, successive generations of monks continued the work until the last volume was published in 1940. The Brothers dug up every scrap of information about every saint on the liturgical calendar and printed the texts arranged according to the <a href="http://saintscatholic.blogspot.com/p/saint-of-day.html">saint’s feast day</a>. </p>
<h2>The Valentine martyrs</h2>
<p>The volume encompassing Feb. 14 contains the stories of a handful of “Valentini,” including the earliest three of whom died in the third century. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/205776/original/file-20180209-51727-39e8g4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/205776/original/file-20180209-51727-39e8g4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=794&fit=crop&dpr=1 600w, https://images.theconversation.com/files/205776/original/file-20180209-51727-39e8g4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=794&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/205776/original/file-20180209-51727-39e8g4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=794&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/205776/original/file-20180209-51727-39e8g4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=998&fit=crop&dpr=1 754w, https://images.theconversation.com/files/205776/original/file-20180209-51727-39e8g4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=998&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/205776/original/file-20180209-51727-39e8g4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=998&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">St. Valentine blessing an epileptic.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Saint_Valentine_blessing_an_epileptic._Coloured_etching._Wellcome_V0016605.jpg">Wellcome Images</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The earliest Valentinus is said to have died in Africa, along with 24 soldiers. Unfortunately, even the Bollandists could not find any more information about him. As the monks knew, sometimes all that the saints left behind was <a href="https://archive.org/stream/actasanctorum05unse#page/762/mode/2up/search/valentinus">a name and day of death</a>.</p>
<p>We know only a little more about the other two Valentines. </p>
<p>According to a late medieval legend reprinted in the “Acta,” which was accompanied by Bollandist critique about its historical value, a Roman priest named Valentinus was arrested during the reign of Emperor Gothicus and put into the custody of an aristocrat named Asterius. </p>
<p>As the story goes, Asterius made the mistake of letting the preacher talk. Father Valentinus went on and on about <a href="https://archive.org/stream/actasanctorum05unse#page/754/mode/2up/search/valentinus">Christ leading pagans</a> out of the shadow of darkness and into the light of truth and salvation. Asterius made a bargain with Valentinus: If the Christian could cure Asterius’s foster-daughter of blindness, he would convert. Valentinus put his hands over the girl’s eyes and <a href="https://archive.org/stream/actasanctorum05unse#page/754/mode/2up/search/valentinus">chanted</a>: </p>
<blockquote>
<p>“Lord Jesus Christ, en-lighten your handmaid, because you are God, the True Light.” </p>
</blockquote>
<p>Easy as that. The child could see, according to the medieval legend. Asterius and his whole family were baptized. Unfortunately, when Emperor Gothicus heard the news, he ordered them all to be executed. But Valentinus was the only one to be beheaded. A pious widow, though, made off with his body and <a href="https://archive.org/stream/actasanctorum05unse#page/754/mode/2up/search/valentinus">had it buried at the site</a> of his martyrdom on the <a href="http://penelope.uchicago.edu/Thayer/E/Gazetteer/Periods/Roman/Topics/Engineering/roads/Flaminia/home.html">Via Flaminia</a>, the ancient highway stretching from Rome to present-day Rimini. Later, a chapel was built over the saint’s remains.</p>
<h2>St. Valentine was not a romantic</h2>
<p>The third third-century Valentinus was a bishop of Terni in the province of Umbria, Italy. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/205777/original/file-20180209-51716-1s7zkex.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/205777/original/file-20180209-51716-1s7zkex.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=759&fit=crop&dpr=1 600w, https://images.theconversation.com/files/205777/original/file-20180209-51716-1s7zkex.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=759&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/205777/original/file-20180209-51716-1s7zkex.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=759&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/205777/original/file-20180209-51716-1s7zkex.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=954&fit=crop&dpr=1 754w, https://images.theconversation.com/files/205777/original/file-20180209-51716-1s7zkex.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=954&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/205777/original/file-20180209-51716-1s7zkex.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=954&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">St. Valentine kneeling.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:St-Valentine-Kneeling-In-Supplication.jpg">David Teniers III</a></span>
</figcaption>
</figure>
<p>According to his equally <a href="https://archive.org/stream/actasanctorum05unse#page/754/mode/2up/search/valentinus">dodgy legend</a>, Terni’s bishop got into a situation like the other Valentinus by debating a potential convert and afterward healing his son. The rest of story is quite similar as well: He too, was beheaded on the <a href="http://www.newadvent.org/cathen/15254a.htm">orders of Emperor Gothicus</a> and his body buried along the Via Flaminia. </p>
<p>It is likely, as the Bollandists suggested, that there weren’t actually two decapitated Valentines, but that two different versions of one saint’s legend appeared in both Rome and Terni.</p>
<p>Nonetheless, African, Roman or Umbrian, none of the Valentines seems to have been a romantic. </p>
<p>Indeed, <a href="https://www.thoughtco.com/st-valentine-patron-saint-of-love-124544">medieval legends, repeated in modern media</a>, had St. Valentine performing Christian marriage rituals or passing notes between Christian lovers jailed by Gothicus. Still other stories romantically involved him with the blind girl whom he allegedly healed. Yet none of these medieval tales had any basis in third-century history, as the Bollandists pointed out.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/205780/original/file-20180209-51731-kj12iz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/205780/original/file-20180209-51731-kj12iz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=764&fit=crop&dpr=1 600w, https://images.theconversation.com/files/205780/original/file-20180209-51731-kj12iz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=764&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/205780/original/file-20180209-51731-kj12iz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=764&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/205780/original/file-20180209-51731-kj12iz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=960&fit=crop&dpr=1 754w, https://images.theconversation.com/files/205780/original/file-20180209-51731-kj12iz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=960&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/205780/original/file-20180209-51731-kj12iz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=960&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">St. Valentine baptizing St. Lucilla.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:St-valentine-baptizing-st-lucilla-jacopo-bassano.jpg">Jacopo Bassano (Jacopo da Ponte)</a></span>
</figcaption>
</figure>
<p>In any case, historical veracity did not count for much with medieval Christians. What they cared about were stories of miracles and martyrdoms, and the physical remains or relics of the saint. To be sure, many different churches and monasteries around medieval Europe claimed to have bits of a <a href="https://archive.org/stream/actasanctorum05unse#page/758/mode/2up/search/valentinus">St. Valentinus’ skull</a> in their treasuries. </p>
<p>Santa Maria in Cosmedin in Rome, for example, still displays a whole skull. According to the Bollandists, other churches across Europe also claim to own slivers and bits of one or the other St. Valentinus’ body: For example, San Anton Church in Madrid, Whitefriar Street Church in Dublin, the Church of Sts. Peter and Paul in Prague, Saint Mary’s Assumption in Chelmno, Poland, as well as churches in Malta, Birmingham, Glasgow, and on the Greek isle of Lesbos, among others. </p>
<p>For believers, relics of the martyrs signified the saints’ continuing their invisible presence among communities of pious Christians. In 11th-century Brittany, for instance, one bishop <a href="https://archive.org/stream/actasanctorum05unse#page/760/mode/2up/search/valentinus">used what was purported to be Valentine’s head</a> to halt fires, prevent epidemics, and cure all sorts of illnesses, including demonic possession. </p>
<p>As far as we know, though, the saint’s bones did nothing special for lovers.</p>
<h2>Unlikely pagan origins</h2>
<p>Many scholars have deconstructed Valentine and his day in <a href="https://books.google.com/books?id=_bqdZbKPztMC">books</a>, <a href="https://doi.org/10.2307/2847741">articles</a> and <a href="http://www.sfgate.com/entertainment/morford/article/Whip-My-Roman-Sex-Gods-You-want-the-true-2634133.php">blog postings</a>. Some suggest that the modern holiday is a Christian cover-up of the more ancient Roman celebration of Lupercalia in mid-February. </p>
<p>Lupercalia originated as a ritual in a rural masculine cult involving the sacrifice of goats and dogs and evolved later into an urban carnival. During the festivities <a href="http://penelope.uchicago.edu/Thayer/e/roman/texts/plutarch/lives/caesar*.html">half-naked young men ran</a> through the streets of Rome, streaking people with thongs cut from the skins of newly killed goats. Pregnant women thought it brought them healthy babies. In 496 A.D., however, Pope Gelasius supposedly <a href="http://penelope.uchicago.edu/Thayer/E/Journals/CP/26/1/Lupercalia*.html#ref9">denounced the rowdy festival</a>. </p>
<p>Still, there is no evidence that the pope purposely replaced Lupercalia with the more sedate cult of the martyred St. Valentine or any other Christian celebration. </p>
<h2>Chaucer and the love birds</h2>
<p>The love connection probably appeared more than a thousand years after the martyrs’ death, when Geoffrey Chaucer, author of “The Canterbury Tales” decreed the February feast of St. Valentinus to the mating of birds. <a href="https://books.google.com/books?id=6bggAAAAMAAJ&pg=PA57&lpg=PA57&dq=seynt+Volantynys+day&source=bl&ots=RazATk9FPU&sig=P18rLlniPQEToUWVCL8jD9lv-gI&hl=en&sa=X&ved=0ahUKEwjf9c6v2ZXZAhWS-VQKHQuuCCIQ6AEIKTAA#v=onepage&q=seynt%20Volantynys%20day&f=false">He wrote</a> in his “Parlement of Foules”: </p>
<blockquote>
<p>“For this was on seynt Volantynys day.
Whan euery bryd comyth there to chese his make.”</p>
</blockquote>
<p>It seems that, in Chaucer’s day, English birds paired off to produce eggs in February. Soon, nature-minded European nobility began sending love notes during bird-mating season. For example, the French Duke of Orléans, who spent some years as a prisoner in the Tower of London, wrote to his wife in February 1415 that he was “already sick of love” (by which he meant lovesick.) And he called her his <a href="http://www.gutenberg.org/files/14343/14343-h/14343-h.htm#p245">“very gentle Valentine.”</a> </p>
<p>English audiences embraced the idea of February mating. Shakespeare’s lovestruck Ophelia spoke of herself as <a href="http://shakespeare-navigators.com/hamlet/H45.html">Hamlet’s Valentine.</a> </p>
<p>In the following centuries, Englishmen and women began using Feb. 14 as an excuse to pen verses to their love objects. Industrialization made it easier with mass-produced illustrated cards adorned with smarmy poetry. Then along came Cadbury, Hershey’s, and other <a href="https://www.smithsonianmag.com/smithsonian-institution/how-chocolate-and-valentines-day-mated-life-180954228/">chocolate manufacturers</a> marketing sweets for one’s sweetheart on Valentine’s Day.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/205779/original/file-20180209-51719-1jvif9m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/205779/original/file-20180209-51719-1jvif9m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/205779/original/file-20180209-51719-1jvif9m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/205779/original/file-20180209-51719-1jvif9m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/205779/original/file-20180209-51719-1jvif9m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/205779/original/file-20180209-51719-1jvif9m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/205779/original/file-20180209-51719-1jvif9m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Valentine’s Day chocolates.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/chocolates-box-red-love-heart-shaped-123648574?src=keC4YCiCasMhWRf-oQMMDQ-1-20">GillianVann/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>Today, shops everywhere in England and the U.S. decorate their windows with hearts and banners proclaiming the annual Day of Love. <a href="https://www.dealnews.com/features/What-to-Expect-from-Valentines-Day-Deals/967905.html">Merchants stock their shelves</a> with candy, jewelry and Cupid-related trinkets begging “Be My Valentine.” For most lovers, this request does not require beheading.</p>
<h2>Invisible Valentines</h2>
<p>It seems that the erstwhile saint behind the holiday of love remains as elusive as love itself. Still, as St. Augustine, the great fifth-century theologian and philosopher argued in his treatise on <a href="http://www.newadvent.org/fathers/1305.htm">“Faith in Invisible Things,”</a> someone does not have to be standing before our eyes for us to love them. </p>
<p>And much like love itself, St. Valentine and his reputation as the patron saint of love are not matters of verifiable history, but of faith.</p><img src="https://counter.theconversation.com/content/90518/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Bitel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Valentine’s Day originated as a feast to celebrate the decapitation of a third-century Christian martyr, or perhaps two. It took a gruesome path to becoming a romantic holiday.Lisa Bitel, Professor of History & Religion, USC Dornsife College of Letters, Arts and SciencesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/697612016-12-05T16:13:44Z2016-12-05T16:13:44ZIt’s not a very merry Christmas for Fairtrade chocolate<figure><img src="https://images.theconversation.com/files/148439/original/image-20161202-25663-c0w496.jpg?ixlib=rb-1.1.0&rect=61%2C23%2C841%2C526&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/pic-523898899/stock-photo-chocolate-bar-chocolate-background-raisin-chocolate-chocolate-tower.html?src=_rNCi48xfiz7hbm7_fiM-w-2-41">Shulevskyy Volodymyr/Shutterstock</a></span></figcaption></figure><p>At a time when children are waking up every day to a chocolate from their advent calendar, the Fairtrade scheme for cocoa farmers is facing a fraught run-up to Christmas. Cadbury’s has announced it will <a href="http://metro.co.uk/2016/11/28/cadbury-drops-out-of-fairtrade-chocolate-scheme-6287987/">drop out of the benchmark certification system</a> in a move that will undermine the good progress that has been made. </p>
<p>The Fairtrade logo will no longer appear on the front of Cadbury’s chocolate packs and will be replaced by their own Cocoa Life scheme branding. In a puzzling announcement, the UK Fairtrade Foundation told campaigners this was an exciting development. It claimed the move represented a “new global partnership” between the Cocoa Life programme and Fairtrade. The new arrangement will see Fairtrade help Cadbury’s owner, Mondelez, to deliver the Cocoa Life sustainability program, and a “partnering” message will go onto the back of Cadbury’s packs. </p>
<p>But this is hard to accept as good news, particularly for campaigners who have spent decades promoting the Fairtrade Mark and its certification system. When Cadbury’s first converted their leading Cadbury’s Dairy Milk product to Fairtrade <a href="http://www.fairtrade.org.uk/en/media-centre/news/archive/cadbury-dairy-milk-commits-to-going-fairtrade">back in 2009</a> it was a moment to celebrate. It was arguably one of the defining moments in the mainstreaming and growth of Fairtrade in the UK and internationally. Cadbury’s CEO Todd Stitzer stated that “our goal is ultimately to have all of our chocolate bars be Fairtrade”. In reality, however, only Cadbury’s chocolate buttons and Cadbury’s drinking chocolate have switched since. </p>
<p>Fairtrade is both a trading system and a movement that people can get behind and support. As it grows, it ensures farmers are paid sustainably and empowered by the relationship. It builds robust and long-lasting partnerships between consumers, companies and producers to better cope in a world trading system prone to shocks and threats. Following Cadbury’s in 2009, both Nestle and Mars <a href="http://betterwork.org/global/wp-content/uploads/Session-1-Beyond-Fair-Trade.pdf">made commitments to Fairtrade</a> and products proudly displaying the Fairtrade logo were bought by millions of customers. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/148440/original/image-20161202-25660-1m5l5xi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/148440/original/image-20161202-25660-1m5l5xi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/148440/original/image-20161202-25660-1m5l5xi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/148440/original/image-20161202-25660-1m5l5xi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/148440/original/image-20161202-25660-1m5l5xi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/148440/original/image-20161202-25660-1m5l5xi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/148440/original/image-20161202-25660-1m5l5xi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/148440/original/image-20161202-25660-1m5l5xi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will Nestle be taking a break too?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/jexweber/5522724776/in/photolist-9q2pEG-ovrDvC-9pYowV-9pYozH-9KyzQx-sjgmQ-pg9dup-hyUChZ-83NHfp-6SVa5V-adtVzw-e8AnZX-adrnop-oxrUJN-391TRa-hZxxKp-5A8Zpx-4j7K5p-ofZKuP-7c6xkJ-ehvnUT-btH38V-oxgCZU-7rojo9-9g9NsJ-ovrWJA-4h1iXq-oxtV3c-9q2pSj-ovrPCb-oxrMZL-cgUcAs-bw8DRR-4Cvz2K-4FqwTz-dxBQ7j-a3QSgu-6CyjTQ-7o8uSK-3uLsAj-8WMbYm-JwtboS-3sGTg-Kmi8G-99vb7n-2WUKDW-h595zQ-ofZPvz-ds9vwa-imLDCf">Jesús Pérez Pacheco/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<h2>Free radicals</h2>
<p><a href="http://www.tandfonline.com/doi/abs/10.1080/00076791.2012.692083">In an article</a> co-authored with Dr Iain Davies of the Bath Management School, I cautiously welcomed the announcements that big names had come on board. But it came with a warning. There has always been the potential for mainstream partners to co-opt the more convenient elements of broader fair trade at the expense of the more radical edges. We also predicted that some of the core fundamental principles and standards upon which Fairtrade is based may be watered down to ensure mainstream engagement with the initiative. </p>
<p>It is therefore disappointing, but perhaps not surprising, to hear that Cadbury’s has chosen to opt out of this international social movement for fairer trade and shift entirely to a private scheme. We are concerned for the reputational damage it could do to the Fairtrade system – and its impact on smaller players. </p>
<p>The policies of big players have an effect on 100% fair trade pioneers such as <a href="http://www.traidcraft.co.uk/">Traidcraft</a>, <a href="http://www.divinechocolate.com/uk/">Divine Chocolate</a> and others. They <a href="http://www.tandfonline.com/doi/full/10.1080/00076791.2012.692083">suffered a slowdown</a> in their fair trade chocolate sales when Cadbury’s announced their switch to the Fairtrade programme in 2009 and their message is compromised by strategic corporate manoeuvring in the ethical chocolate marketplace.</p>
<p>The raison d’etre of these pioneers is their social mission. They go way beyond the minimum Fairtrade standards. In the case of Divine, cocoa farmers are made shareholders in the company, all products are certified fair trade, and all other ingredients are fair trade sourced where possible. </p>
<p>The announcement by Cadbury’s has led to headlines suggesting that the Fairtrade scheme <a href="http://www.thegrocer.co.uk/buying-and-supplying/categories/confectionery/as-cadbury-axes-logo-is-fairtrade-finished/545342.article">might be finished</a>, which does little to support the work of other fair trade pioneers. Consumers may lose faith. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/148441/original/image-20161202-25653-9x3omd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/148441/original/image-20161202-25653-9x3omd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/148441/original/image-20161202-25653-9x3omd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/148441/original/image-20161202-25653-9x3omd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/148441/original/image-20161202-25653-9x3omd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/148441/original/image-20161202-25653-9x3omd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/148441/original/image-20161202-25653-9x3omd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/148441/original/image-20161202-25653-9x3omd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Has bean?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/99374229@N07/12177230355/in/photolist-jy4ukv-7ZyFns-Dn5G7c-97aJD6-79uTMC-79uJHu-hhnVdT-79uJUs-79uKa3-ovBu3x-aHWyTr-oFxvko-hhouEy-97aKct-81n6E5-aWbK36-79qSTF-hhopEm-hho6Rg-hjjFr6-eBEqRF-hjNjPP-jy6Cfy-hhnYmq-hjMsr7-jy5zTR-hho5sU-f1waW9-hiuQcw-79qSYP-79uJxw-9beHw2-jy7EfA-8necFQ-e1APzh-8vy6uf-e1APu7-eWMpvx-9oRa31-7hPDuG-ebzbKo-p7SRK8-aHXP4v-oN7fen-jy6Dn3-72mZgK-7Y4fJY-cPGL9w-72qZio-72n1nP">USAID's Development Credit Authority/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<h2>Reality cheque</h2>
<p>Despite the upbeat rhetoric from both sides, the Cadbury’s withdrawal has been a major blow for the UK Fairtrade Foundation. Remember that one of the foundation’s aims since it was set up in 1992 has been to promote and raise awareness of the Fairtrade Mark – its <a href="http://www.fairtrade.org.uk/en/what-is-fairtrade/who-we-are">highly visible stamp of approval</a>. </p>
<p>They have made the most of a difficult situation to ensure via Cocoa Life that Mondelez continues to invest in working with farmers in Ghana and that Fairtrade will report in some way on the Cocoa Life scheme’s progress. But it is slim pickings for the optimists.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/148630/original/image-20161205-19399-te8kig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/148630/original/image-20161205-19399-te8kig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/148630/original/image-20161205-19399-te8kig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/148630/original/image-20161205-19399-te8kig.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/148630/original/image-20161205-19399-te8kig.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/148630/original/image-20161205-19399-te8kig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/148630/original/image-20161205-19399-te8kig.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/148630/original/image-20161205-19399-te8kig.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Dairy Milk bars bearing the Fairtrade Mark.</span>
<span class="attribution"><span class="source">EPA/ANDY RAIN</span></span>
</figcaption>
</figure>
<p>The hope must be that the continued association with Fairtrade means that Mondelez will continue to support smallholder farmers. One of the biggest benefits of the Fairtrade project has been the requirement for smallholder farmers to come together in democratic organisations to decide how to spend the premiums, build their businesses and invest in their communities. <a href="http://www.fairtrade.org.uk/en/media-centre/blog/2016/november/what-is-happening-with-cadbury-and-fairtrade">According to Fairtrade</a>, Cocoa Life must deliver at least equivalent value to the Cadbury farmers as they would have received under Fairtrade, including direct cash loyalty payments to farmers. </p>
<p>Finally, as Cadbury’s moves to its own company private cocoa scheme, it is unclear whether there will be any kind of full and trusted third party verification monitoring of how much money is invested and where. <a href="http://www.globescan.com/news-and-analysis/press-releases/press-releases-2011/94-press-releases-2011/145-high-trust-and-global-recognition-makes-fairtrade-an-enabler-of-ethical-consumer-choice.html">Studies have shown</a> this independent monitoring is crucial to scheme credibility. It is also unclear what role farmers will have in running this programme, and whether, as it is their future that is being decided, they have appropriate influence over the price they get for their cocoa and how the money is spent.</p>
<p>The real danger lies in the fact that other major players are also building <a href="http://www.nestle.co.uk/csv2015/rural-development/nestl%c3%a9-cocoa-plan">their own private schemes</a>. This clearly opens up the possibility that they too will opt out of the independent certification scheme. If this does come to pass, consumers will be left unable to properly assess and compare the benefits to farmers being offered by the different chocolate brands. And that favours the big companies far more than it does those growing the cocoa.</p><img src="https://counter.theconversation.com/content/69761/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bob Doherty does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The benchmark scheme that protects cocoa farmers and local communities could be toppled as big players rethink their role.Bob Doherty, Professor of Marketing , University of YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/642702016-08-25T11:41:15Z2016-08-25T11:41:15ZWhat on Earth are they doing to our chocolate bars?<figure><img src="https://images.theconversation.com/files/135390/original/image-20160824-30249-b38w5c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Robert Kneschke</span></span></figcaption></figure><p>Chocolate lovers are restless. Many much-loved <a href="http://www.telegraph.co.uk/food-and-drink/features/the-many-ways-cadbury-is-losing-its-magic/">chocolate bars are changing shape</a>, getting smaller, or contain a lower cocoa content, so they just don’t taste as good. When it comes to choosing a sweet treat, there seems to be a greater range than ever – but, for many people, the bar they’ve enjoyed all their lives just doesn’t seem the same. </p>
<p>And the truth is, in a lot of cases, it isn’t. </p>
<p>There’s a lot happening in the world of confectionery. The industry manufactures an abundance of products, from the familiar to the novel, but generating growth through new product development is difficult because consumers can be reluctant to try something new. So the acquisition of rival businesses may be a preferred route to achieving sales growth. </p>
<p>This challenge may explain why Mondelez International apparently is <a href="https://www.theguardian.com/business/2016/jun/30/cadbury-oreo-mondelez-buy-hersheys-chocolate">seeking to acquire The Hershey Company</a>, bringing together the Cadbury’s, Tobler and Terry’s brands with Hershey and Reece’s. </p>
<p>The chocolate industry is segregated into global mass producers such as Mondelez, Mars and Nestle, proliferating bars, blocks and bags of familiar brands, and the premium producers, typically smaller organisations such as Hotel Chocolat, emphasising cocoa content – and its origin – in <a href="http://www.standard.co.uk/goingout/restaurants/a-hot-chocolate-caf-is-coming-to-islington-a3107816.html">eating and drinking forms</a>.</p>
<p>Mass-produced chocolate is undergoing rapid change. Dairy Milk Marvellous Creations Mix Ups, for example, combines wine gums, chocolates and biscuits, outputs from different Mondelez businesses in a single bag. And Mondelez doesn’t stop there: Dairy Milk Ritz embeds salty crackers in sweet chocolate. These products demonstrate the dual importance of cost reduction and innovation. Costs are reduced by <a href="http://www.themanufacturer.com/articles/mondelez-unveils-new-sheffield-oreo-facility/">combining operations</a> between previously independent business units, an important post-acquisition agenda.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"533569128054157312"}"></div></p>
<p>In terms of innovation, novelty is achieved by stretching familiar brands over to unfamiliar supermarket shelving – from biscuits to chocolate or vice versa – thereby boosting visibility. Additionally, the innovation of substituting chocolate with biscuits and sweets lowers the cost of raw materials.</p>
<h2>Innovation or rip-off?</h2>
<p>Adapting products is tricky. According to the concept of “<a href="http://www.irmbrjournal.com/papers/1447245816.pdf">value engineering</a>” new product development must balance the quest for cost reduction with the <a href="https://www.researchgate.net/publication/257390325_Evaluation_of_the_affective_coherence_of_the_exterior_and_interior_of_chocolate_snacks">functions of taste, form and packaging</a>. They all affect product preference. The challenge is to ensure that cost reduction does not result in loss of function or customer dissatisfaction. So, if a bar loses its straight edges in favour of curves – <a href="https://www.theguardian.com/lifeandstyle/wordofmouth/2013/oct/01/cadbury-dairy-milk-rounded-chunks-chocolate-sweeter">as happened with Cadbury Dairy Milk in 2012</a> – any loss of substance (<a href="http://www.dailymail.co.uk/news/article-2219775/Cadbury-cuts-size-Dairy-Milk-chocolate-bar-keeps-price-exactly-same.html">the bar shrunk from 54g to 34g</a>) should be compensated for by improved mouth feel or taste experience.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"585873726253719552"}"></div></p>
<p>But a balance between cost and function is not always achieved. A <a href="http://www.which.co.uk/news/2016/04/discover-the-latest-supermarket-products-that-have-shrunk-439230/">recent Which? survey</a> revealed the widespread shrinking of grocery products with <a href="https://www.theguardian.com/uk-news/2016/apr/20/supermarket-products-smaller-size-prices-stay-same">no corresponding reduction in price</a>. As well as the shrinking Dairy Milk bar, Creme Eggs have gone from being sold in packs of six to five, Yorkie has been reduced to five chunks. <a href="http://www.thegrocer.co.uk/mars-bars-shrink-but-price-stays-the-same/352754.article">Mars and Snickers are smaller</a>, although they are less calorific. </p>
<p>Why is chocolate <a href="http://www.bbc.co.uk/news/business-26859113">subject to this shrinkflation</a> – and how much of a gamble is it for the manufacturers? </p>
<h2>The trappings of nostalgia</h2>
<p>The chocolate industry has an uneasy relationship with “newness”. The desire to create something new must be balanced by <a href="http://www.bbc.co.uk/food/0/20170412">food nostalgia</a> – the emotional connections that occur through consumption <a href="http://www.emeraldinsight.com/doi/abs/10.1108/QMR-06-2014-0054?journalCode=qmr">that shape self-identity</a>. Chocolate eating habits and preferences <a href="http://psychsource.bps.org.uk/details/journalArticle/9688291/What-Did-You-Do-to-My-Brand-The-Moderating-Effect-of-Brand-Nostalgia-on-Consumer.html">start in childhood and can be continued through to adulthood</a>. The bestselling brands of Dairy Milk, Maltesers and KitKat are at least 70 years old, suggesting that nostalgia is nothing new. Consequently, the best way to innovate in chocolate bars is to somehow rejuvenate known brands – the Kit Kat Chunky being one such success. When it comes to chocolate bars, something entirely new is unlikely to work.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"755858816789389313"}"></div></p>
<p>Cost reduction and incremental product changes seem a logical response to stagnating market growth, <a href="http://www.euromonitor.com/chocolate-confectionery-in-the-united-kingdom/report">increases in the costs of cocoa and cocoa butter</a> and customers who are reluctant to try anything new or pay more for well-loved brands. Will this pattern of acquisitions and value engineering benefit the consumer – or will there be smaller products with less chocolate, thereby weakening the connection between happy memories and what is eaten today?</p>
<h2>Sweet success</h2>
<p>Premium chocolate manufacturers – such as <a href="http://www.telegraph.co.uk/business/2016/03/09/hotel-chocolat-looks-to-raise-50m-with-aim-float/">Hotel Chocolat</a> or <a href="http://www.greenandblacks.co.uk/frequently-asked-questions">Green & Black</a>, are different in form and strategy. Innovations tend to showcase the ingredients – and cocoa content becomes something to highlight rather than something to be reduced. They also tend to stress their ethical credentials such as fair trade and investing in producers. </p>
<p>The differences between mass market and premium product strategies create a dilemma for businesses wanting to be in both sectors as each requires a different approach to cost management and innovation. Go back 150 years and Cadbury’s found a “mid-way”, pioneering large-scale production of chocolate alongside ethical work practices – building the model town of Bourneville with decent accommodation and an emphasis on the health and education of its workforce.</p>
<p>Today’s priorities are different – and if we want business strategies to change, then consumers need to let go of their past and create a new relationship with chocolate, one based on taste and sustainable futures for cultivators and producers. We will, however, need to pay more for it.</p><img src="https://counter.theconversation.com/content/64270/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Leigh Morland does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Some old favourites are shrinking or changing shape and introducing new ingredients.Leigh Morland, Principal Lecturer - Department of Management, University of HuddersfieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/485242015-10-08T13:42:27Z2015-10-08T13:42:27ZChocolate war in the court room as KitKat fingers and Lindt bears take the stand<figure><img src="https://images.theconversation.com/files/97755/original/image-20151008-9682-kwzkl3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Battleground. Chocolate firms try to keep you coming back for more.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/brizzlebornandbred/5110941023/in/photolist-8MCUGP-mzTmkJ-muMuZF-nu9123-dLfeVH-TFbqx-9tgBve-3YayV-muN4ZX-2RDzB6-oR79JX-5Uy5V-p7pMWF-ge4zhR-oEbbrR-6YdVnJ-bunZdT-qJTaL-9cxMUu-96sqPo-gd5kFu-7aZjud-e2zn81-8MzhyL-8MzhGf-8MzhBU-aM7QGz-5ZrgaS-8FUh5D-8MzgC3-Gb222-toArip-7dAwfj-dq9r2-b42Jv-8HpKYo-6aS4dU-5QYvQr-fcrMeQ-75uBLs-sHgY21-xdQkyy-dsFK4V-cfMKwS-8NTyXb-5R6soV-eyPT6L-96ppwH-7dNeu8-8rX44q">Paul Townsend</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Rivals operating in the multi-billion pound world of chocolate branding occasionally launch attacks on one another as they seek to secure your snacking loyalty. They want to defend their existing empires, as well as pursue new territories and markets – and two such trade mark battles have come to the fore in the news in recent weeks which reveal a lot about the tension between the legal protections provided by trade mark law and the competitive nature of the marketplace for chocolate. </p>
<p>First, in mid-September the Court of Justice of the EU ruled on Nestlé’s bid to receive UK trade mark protection for the (allegedly) distinct shape of the four-finger version of the KitKat, long touted as the UK’s favourite chocolate bar. <a href="http://www.dailymail.co.uk/news/article-3237772/Cadbury-kills-bid-Nestle-trademark-distinctive-shape-KitKat.html">Nestlé’s main aim</a> is apparently to prevent a rival four finger chocolate bar from being marketed by Cadbury. Then, in late September the German Federal court ruled on the dispute between jelly sweet giant Haribo and Lindt over Lindt’s chocolate bears and Haribo’s “Gold Bear” trade mark. </p>
<h2>KitKat Attack</h2>
<p>Dealing first with the KitKat case, Nestlé’s claim over the four finger shape was framed around two fundamental aspects of trade mark law. First, <a href="http://www.legislation.gov.uk/ukpga/1994/26/contents">it is possible under trade mark law</a> to register a three dimensional shape – in this case the four fingers – as a trade mark, as long as that shape has sufficient “distinctiveness”. It is also possible for a shape to “acquire” distinctiveness through use in the marketplace and consumer recognition. <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2014/16.html">Cadbury argued</a> that the shape had not acquired sufficient distinctiveness in the minds of consumers. </p>
<p>So far, so simple. But the other key question centred on whether a shape with so-called functional elements in its design could also be protected as a trade mark. In the case of the KitKat, that basically refers to the ability to break off each individual finger to dip in your tea (or however you choose to eat it; I’m aware it is a personal thing). Now, generally, the law does not protect purely “functional” shapes – the reason being that competitors ought to be allowed to produce competing goods.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A ‘functional’ element at work.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/threefingers/2246571713/in/photolist-4qwgv4-avr3N4-7UEyip-7q2JLu-dWxve6-jgW6HC-sgtPXf-9svtNJ-d7Fbzh-d7FbWf-4NdFUx-b4aLqz-7v4nJq-qF3CGa-5ZnEK4-88QgKH-7ndYC4-bJy2M2-8Dd2gj-89VEKL-gd9gWW-6i27iZ-5ZnD9x-5ZnDXH-KGcCq-64SAPL-6bsjLu-4KdUc5-4vmiPz-6MZRKm-9t9RYQ-7twsMY-6rvHsW-9t6RBF-bvbD7w-5paSKX-ppH6Af-3d8TCk-9t6SeZ-dWxv6v-6hwE2t-5HDSby-5HDRFo-5HDRRw-98H7J9-97fKF4-dxaeaM-Yv2X1-aHnQWT-9H4YMj">Sean Murray</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>On the matter of distinctiveness, the court ruled that to obtain trade mark protection, Nestlé had to demonstrate that consumers identify the four finger shape itself - stripped of any packaging or branding - with Nestlé and KitKat. This ruling was <a href="http://www.bbc.co.uk/news/business-34266169">widely reported in the media</a> as a victory for Cadbury, but the legal reality is more complex. </p>
<p>Nestlé has always claimed that even without its well known red and white packaging or the use of the existing trade mark name, the shape of the bar should of itself be regarded as sufficiently distinct, and it <a href="https://www.ipo.gov.uk/types/tm/t-os/t-find/t-challenge-decision-results/o25713.pdf">claims some consumer survey evidence</a> to support this. </p>
<p>For Cadbury there is a further sting in the tail. On the issue of functionality the court’s ruling seems to strongly favour Nestlé because the key elements of the four finger shape do not seem to fall within a single category of objection, which means that Nestlé’s four finger shape is likely to survive this test. The case now <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2014/16.html">returns to the High Court</a> for a determination on the facts. </p>
<h2>The bear facts</h2>
<p>The case between Haribo and Lindt has a similar ring to it, and it is again all about stopping rivals encroaching on your space in the confectionery aisle of the supermarket, however limited that danger might appear to us shoppers. </p>
<p>Their dispute concerned the “Gold Bear” trade mark under which Haribo has long marketed a well known range of gummy bears; the words themselves are protected under trade mark law as a word mark. The problems started when Swiss chocolate maker Lindt began selling a gold foil-wrapped chocolate teddy bear. Haribo was quick to accuse its rival of infringing the Gold Bear trademark. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Flash point. When bears attack.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/foodishfetish/8140351801/in/photolist-dpkqZ8">Jocelyn & Cathy</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>Haribo claimed that consumers would confuse the two products and go on to incorrectly associate the Lindt gold bear with Haribo. Lindt, meanwhile, argued that its foil-wrapped chocolate bears were merely a variation on its famous chocolate Easter bunny rabbit design. Lindt pointed out that both the Lindt bear and the Lindt bunny rabbit are typically packaged in gold foil with a red ribbon, and argued there was no intention to associate with Haribo’s Gold Bear mark.</p>
<p>Haribo <a href="http://www.theguardian.com/business/2012/dec/18/gummy-bear-wins-court-battles">won the first round of this battle</a> when, in December 2012, a German regional court banned future sales of Lindt’s bears. However, a later German appeal court in Cologne rejected that ruling and said that Haribo’s feared consumer confusion between the two products would not in fact occur. This appeal ruling has now been upheld by the German Federal court in a decision that leaves the Lindt bears on the shelf and which brings this particular chocolate war to a fitting close.</p>
<p>If nothing else, these cases are a useful reminder of how valuable you - the consumer - are to makers of sugary snacks, and how fearful companies are that your gaze might be diverted from their offering. Disputes that might on the surface seem petty have pitted together three of Europe’s largest chocolate manufacturers (Cadbury, Nestlé and Lindt) as well as one of its premier sweet manufacturers (Haribo). Behind the scenes of your mid-morning treat is a fierce battle to protect trade marks, market share and, ultimately, profit margins.</p><img src="https://counter.theconversation.com/content/48524/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke McDonagh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Behind the scenes of your mid-morning treat is a fierce legal battle to protect market share and profits.Luke McDonagh, Lecturer in Law, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/99502012-10-05T04:16:33Z2012-10-05T04:16:33ZTrademark victory allows Cadbury to retain its purple reign<figure><img src="https://images.theconversation.com/files/16186/original/3g23x9dd-1349328743.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sweet victory: Cadbury now has the right to the trademark for the distinctive shade of purple it uses for the packaging of its chocolate.</span> <span class="attribution"><span class="source">AAP</span></span></figcaption></figure><p>Can you own a colour, a name, or a sound?</p>
<p>Those questions have been highlighted again in the UK, where there has been another outbreak of litigation about “Cadbury Purple”.</p>
<p>Australian <a href="http://www.ipaustralia.gov.au/get-the-right-ip/trade-marks/">trademark</a> law, like that in many other countries, allows individuals and enterprises to gain legal protection for a distinctive “<a href="http://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/s17.html">sign</a>” that differentiates their products from those of their competitors. </p>
<p>The products might be goods — shoes, cheese, biscuits, cars or children’s toys, for example — or they might be services, such as banking and accounting. </p>
<p>With the ongoing shift to outsourcing, many corporations have few tangible assets. Their market <a href="http://brandirectory.com/">valuation</a> is a reflection of the reputation that is embodied in their trademarks. The protection is justified as an encouragement of investment and an aid for decisions by consumers, whose purchasing is assumed to be influenced by trust in particular brands.</p>
<p>Australian consumers swim in a sea of trademarks. Most people are familiar with trademarked corporate/brand names, such as Microsoft and IBM, or the names of some universities. We are familiar with trademarked logos, such as the Telstra ‘T’ and the Commonwealth Bank logo that one student rather cruelly describes as Vegemite on a Sao biscuit. (Vegemite and Sao are, of course, trademarks.)</p>
<p>Some people are aware that distinctive shapes in packaging are protected, such as the unique, cuddlesome Coke “<a href="http://fortnightlyreview.info/tag/coke-bottle/">contour</a>” bottle. Sounds can be protected. Examples are Tarzan’s <a href="http://www.erbzine.com/mag14/1482.html">yodel</a> (the rather strangled noise made by the loincloth-clad hero as he hurtles through the trees in films made by a particular studio), the drumroll-with-searchlights at the beginning of a 20th Century-Fox film, or the roar of the MGM lion that differentiates that studio’s wares from those of Fox, Canal+ and Universal. Harley-Davidson, contrary to rumour, does not have protection over the sound of its “hogs”.</p>
<p>Colours can be used to differentiate products. Think of the distinctive <a href="http://cblr.columbia.edu/archives/11863">Tiffany blue</a> used in packaging upmarket bling. In Australia, marketers have shown increasing interest in gaining trade mark protection for the use of particular colours. That use has to be on a commercial basis (the law refers to “in the course of trade”) and is restricted to a particular class of goods and services. A colour trademark thus doesn’t give the user of the mark the right to “own” the colour and, for example, stop you from painting your wall a particular shade of blue or force you to pay a licence fee if you wear a jumper that your granny knitted in the wrong colour.</p>
<p>Protection is more restricted. It relates to a specific shade of colour (typically identified on the <a href="http://www.pantone.com/pages/pantone/colorfinder.aspx">Pantone</a> scale) and to a specific group of products. The same shade – or one that is very similar – might thus be used by different companies to identify tractors and fast food, classes of products that few people would confuse. Each of those companies might get discrete trade mark protection for its use of the colour to identify its products.</p>
<p>That’s confused the mass media and some marketers, who have fretted that particular corporations will own the colour blue or purple — all shades, all uses. In Australia, we’ve seen chocolate and pet food giant Mars get trademark protection for a shade of purple to <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2010/639.html">identify</a> cat food. Discerning kittens (or their doting owners) differentiate the Mars product from that of the competitors on the basis of the colour. </p>
<p>There was a <a href="http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/8.html">public spat</a> between Darrell Lea and Cadbury Schweppes over use of a similar purple for chocolates, with courts holding that consumers were unlike to confuse cat food and chocolates but might confuse the products of the two chocolate companies. In the US last month, an appeals court <a href="http://www.bloomberg.com/news/2012-09-05/louboutin-wins-appeal-over-saint-laurent-red-soles-shoes.html">reminded</a> shoe manufacturers that they couldn’t get trademark protection for all shades of the colour red. A particular shoe company thus cannot “own” all uses of red for shoes, clothing, flags or traffic lights. Christian Louboutin, provider of footwear that law students die for, could however prevent Yves Saint Laurent from marketing shoes that have a red lacquered sole. The red sole functions as Louboutin’s sign, like the yellow stitching in Doc Martens kicker boots.</p>
<p>This month saw more Cadbury Purple litigation. Birss J in the UK High Court <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2012/2637.html">ruled</a> that Cadbury could indeed get trademark protection for a particular shade of purple (Pantone 2685C) to identify its chocolate bars and similar chocolate products. The decision does not give Cadbury ownership of all uses of purple or of the specific shade of purple. </p>
<p>It does, however, allow Cadbury to prevent competitor Nestle from using that shade, or a confusingly similar shade, for the packaging of Nestle’s corresponding chocolate products. In essence, the Court recognised that people buying chocolate at the corner shop or supermarket typically don’t conduct a forensic examination: they are guided by the colour. Nestle wanted to piggyback on the goodwill and the brand recognition established by Cadbury over 100 years. The court said no.</p><img src="https://counter.theconversation.com/content/9950/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Baer Arnold does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Can you own a colour, a name, or a sound? Those questions have been highlighted again in the UK, where there has been another outbreak of litigation about “Cadbury Purple”. Australian trademark law, like…Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.