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Hershey to Hershey: Don't Mess with Our Trade Dress

Chris Dickman Thu, 06/12/2014 - 09:17

When it comes to intellectual property rights, we all know that corporations are are constantly on the lookout for those they feel are employing elements of their brand identity without permission. And these perceived infractions can be on the part of competitors or completely random entities.

For example, demonstrators protesting against the recent military coup in Thailand began employing McDonald's classic golden arches logo in an ironic manner (shown above), only to have the firm quickly distance itself by issuing a testy cease and desist order on its Facebook page: "It has come to our attention that certain persons have recently used the McDonald's logo, symbol and trademark through several social media and we believe that such acts may have purportedly been carried out for the purposes of furthering certain political interests. We emphasize that we have no connection whatsoever with such aforesaid actions, and wish to clarify that McThai has and continues to maintain a neutral stance in the current political situation in Thailand." Translation: buy a burger and shut up.

The protestors have also appropriated the three-finger salute from the movie "The Hunger Games" but there's no word yet that distributor Lion's Gate has set its legal team in action, perhaps instead recalling the words of screen hottie Mae West, who once famously purred, "Honey, there ain't no such thing as bad publicity." (Speaking of Thailand, you might want to think twice about eating shrimp from that beautiful but troubled country, given what we know about the use of slavery on its fishing boats.)

Then there's the perceived abuse of what's colorfully called a brand's "trade dress," which typically involves a competitor employing packaging with similar colors, type or other design elements for a product that might be confused with that of the firm defending its IP rights. In the candy sector this is a big deal, with a good example being Cadbury's struggle last year to trademark the distinctive purple it has been using for its chocolates for more than 100 years (now defined as Pantone 2685C). But arch-rival Nestlé contested this and won.

This brings us to a fresh instance of claimed trade dress abuse, with The Hershey Company, North America's largest chocolate manufacturer, having launched a lawsuit to compel Republican Senator Stephen S. Hershey Jr. (no relation) to cease employing campaign materials that in its view closely resemble its corporate logo and product packaging. The complaint spelled it out: "Hershey is bringing this action to stop Senator Steve Hershey and his campaign from using the famous trade dress of the Hershey's chocolate bar in connection with Senator Hershey's campaign activities."

According to "The Baltimore Sun" the Senator had employed this tactic back in 2002 to good effect when running for commissioner and again in 2010, at which point the candymaker told him to cut it out. We're told that he agreed at the time but is now back at it, this time hoping that elements of a brown Maryland flag in the background will make everything okay. It would seem that the siren song of the sweet is too strong to resist — from an electoral perspective.

But the global confectioner is serious this time, snippily stating in its filing that, "It is apparent that the overall resulting design is a confusingly similar knockoff of, and unlawful colorable imitation of, the famous and iconic Hershey Trade Dress." But Hershey could be the least of Hershey's (confusing, isn't it?) problems, since we have now learned that a second lawsuit has been filed against the Senator, this time by Microsoft. That's right, the firm from Redmond is steamed that he's infringing the trade dress of the famous and iconic brown Zune! The upcoming battle should be epic.