How have the courts interpreted the design of a biscuit in the context of a design patent?

We do not see any possible change in the appearance of the biscuit itself which would be of enough service to the plaintiff to justify its imposition upon the defendant. Concededly, variation could be enforced only in its form, color, or size. As to form, the plaintiff appears to us finally concluded by its own design patent. Whether or not the evidence might have allowed us to prescribe some variation in the form, had that form been only the result of the plaintiff's original adoption, we do not say. Fox v. Hathaway, supra, suggests that we might have found a way out. But the plaintiff's formal dedication of the design is conclusive reason against any injunction based upon the exclusive right to that form, however necessary the plaintiff may find it for its protection. As to color, also, we feel ourselves limited, because, while the shade of brown depends upon the baking, the plaintiff's own biscuits vary within appreciable limits, and to require the [250 F. 965] defendant to adopt a shade different enough for commercial distinction would be to force them to bake their biscuits so that they would be repellant to most tastes. It would, so far as we can see, in effect, either terminate or hopelessly cripple any competition between the two parties.