Protecting Our Hershey Bar!

In an action filed in the US District Court in Harrisburg (Hershey Co. v. Williams Sonoma, Inc.) the Hershey Co. has asked the Court to enjoin any further sales of a brownie pan sold by Williams Sonoma, Inc.  Hershey claims that the dimensions of the brownie pan are identical to those of its famous Hershey Bar.  The suit alleges that this purposeful copy of a memorable image that Hershey has created and nurtured for more than 100 years is an attempt by Williams Sonoma to trade unlawfully on the goodwill and reputation of Hershey.

Hershey points out in its complaint that its candy bars are much more than just chocolate rectangles; they have been carefully designed to contain raised rectangular panels of a 4×3 dimension, and each panel has a raised edge.  It is this design which gives the candy bar its distinctive appearance, and Hershey alleges that the  appearance of brownies prepared in the Williams Sonoma pan is identical to that of the iconic Hershey bar.

The suit alleges that the Williams Sonoma package uses a type font which is nearly identical to that on the Hershey bar wrapper as further evidence of their intent to trade upon Hershey’s image.

Writing in Celebrity Wedding, Charlie Penn said of the pan that “It bakes into one giant brownie that snaps into 12 easily sharable chunks like a Hershey bar.”  That did it!  Claiming a violation of trademark laws, Hershey was quick to seek to protect its image.

Your first impression might be that the similar design is a compliment to Hershey’s wide recognition.  In a sense it is, but it can also be dangerous to the Hershey image; if it is not protected, the design might become generic which would permit any manufacturer of chocolate to copy it.  This could have a devastating impact on Hershey’s sales.  Some famous illustrations of trademarks which were not protected and the originating companies are aspirin (Bayer), escalator (Otis), Zipper (Goodrich), yo-yo (Duncan), band-aid (Johnson & Johnson), butterscotch (Parkinsons), and frisbee (Wham-O).  All of these terms lost their protection in the United States; in most cases it was because the company creating the product “slept” on its rights and neglected to protect its trademark aggressively.

I suppose we can expect the winner to claim sweet revenge.  We’ll keep you posted.

— Ken Butera


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