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Everyday IP: A brief history of candy bars

Dennemeyer Group / April 7, 2021
Everyday IP: A brief history of candy bars

Though we may not all admit it, few among us can resist the appeal of a candy bar. But did you know the history of these confections and their value as Intellectual Property assets?

Today, candy bars — or chocolate bars, as many call them outside of the U.S. — are perhaps the most commonly bought sweet treats in the world. You will see them on display when visiting just about every supermarket, convenience store or newsagent, usually in a position primed to influence purchase (e.g., just before the register).

To be fair, the history of this type of candy is a drop in the bucket compared to that of the chocolate itself. There is persuasive evidence of chocolate consumption that dates as far back as 1750 and even 1900 BCE, with much of this early use taking place in what is now Mexico among the Olmec civilizations. That said, the chocolate bar is not far from its bicentennial anniversary, so to borrow an American expression, it certainly is no "spring chicken" either.

An English origin story

When people think of chocolate bars, brand and company names like Snickers, Reese's, Nestle, Cadbury, Ferrero Rocher and Godiva are most likely to come to their minds. But in all probability, none of those would ever exist without the innovations of a business and inventor whose name, outside of the U.K., is largely lost to history — Joseph Storrs Fry.

Indeed, Bristol-based company J.S. Fry & Sons (or "Fry's") produced the first confection similar to modern candy bars in 1847. It was a mixture of cocoa powder, sugar and melted cocoa butter, molded into small bar-like shapes. Fry's Chocolate Cream, a simple fondant cream coated in bars of melted chocolate, came next in 1866: Not only is this product an even more obvious precursor to today's bars, but it is also still in circulation as part of the Cadbury catalog.

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According to Wikipedia, the Fry's Chocolate Cream production once "exceeded half a million units per day and the foil wrapping and label would appear in 1925."  

Also, in 1866, the Cadbury family, which had been producing and selling various cocoa and chocolate products for just over 30 years, adopted a new cocoa processing technique. This innovation would help exponentially increase Cadbury's business. Several decades later, in 1919, Cadbury would acquire Fry's, and the companies had an alternatively cooperative and adversarial relationship for the next few decades.

Dutch influence and Swiss refinement

On its official website, Cadbury readily acknowledges its debt to Dutch inventor Coenraad Johannes Van Houten, who, alongside his father Casparus in 1828, created the cocoa press that the Cadbury family adapted slightly almost 40 years later to great success.

So why, you may ask, is Van Houten not as famous a name as Cadbury or, as we will see shortly, Nestle? (The Barry Callebaut chocolate conglomerate acquired and still uses the Van Houten brand moniker, but by no means is it well-known outside the industry.) It comes down to IP rights: The Van Houten family obtained a patent in 1828 for their cocoa press, but as there are no records of any disputes over the machine's authorship, it does not appear that they renewed their patent grant. Thus, Fry's, Cadbury and others could use or modify the device (and the associated techniques) as they wished.

Elsewhere, in 1870s Switzerland, Daniel Peter and Henri Nestle would create milk chocolate by adding Nestle's invention (condensed milk) to cocoa powder, butter and sugar. Seeing as the vast majority of today's most popular candy bars use milk chocolate, it is reasonable to say that the innovation of Peter and Nestle was just as important as anything that had come before.

American bars and the Baby Ruth trademark dispute

Confectioners in the U.S. soon followed in the footsteps of their British and Swiss predecessors. Milton Hershey produced his eponymous, now-iconic chocolate bar at the turn of the 20th century. Not long after, a number of other American chocolatiers and companies made "combination bars" that included multiple fillings (caramel, nougat, nuts and more). First was the Goo Goo Cluster in 1912, then came the Clark, Oh Henry!, Baby Ruth and other bars. In 1930, the Mars company debuted the Snickers bar, which remains one of the world's most popular candies.

The Baby Ruth is most interesting of all from an IP perspective. Combining peanuts, caramel and nougat in a novel fashion, the bar was a massive success for Otto Schnering and his Curtiss Candy Company in the early 1920s. Today, Baby Ruth is a key brand under the Ferrera company umbrella.

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Confectionery historians are debating the origin of the name "Baby Ruth" to this day. Despite his claims, Otto Schnering did launch the candy bar right when the American baseball legend was on top of his game, shattering records after records... (Source: Made-in-Chicago Museum)

One might think that the candy's name is a reference to baseball player Babe Ruth, the superstar of the New York Yankees. Ruth himself seems to have thought so. He helped start the George H. Ruth Candy Company in 1926 to compete with the Baby Ruth and sought rights for a similar candy bar called Babe Ruth's Home Run Candy. Schnering claimed his combination bar was named after "Baby" Ruth Cleveland, daughter of former U.S. President Grover Cleveland, and promptly sued the Yankees legend for trademark infringement.

The confectioner may well have been lying: Both Cleveland and his daughter (who died of diphtheria at just 12 years old, in 1904) had faded from the American public consciousness decades ago. Babe Ruth, by contrast, was an icon in the 1920s and is still revered by baseball players and fans alike. By the logic of Occam's Razor, the latter would be the candy bar's most likely inspiration.

But whatever the truth may have been behind Schnering's choice of name, a 1931 court ruled in his favor. This ended the matter as far as U.S. trademark law was concerned. But the case remains a valuable lesson for today: Always seek the counsel of IP experts — like us here at Dennemeyer — to ensure you are as prepared as possible to protect your IP rights!