Hershey’s Kisses: Got Lawyer?

March 5, 2010 at 8:29 am 2 comments

While I was researching the stories about Kisses and Buds in my previous posts, I came across a lot of interesting information, not all of which is included in the official “Kisses Facts.” And I also came across a lot of lawsuits. So here are some things about Hershey’s Kisses that you might not know:

Hershey’s churns out something like 80 million Kisses a day in three factories (Pennsylvania, California, Virginia). That’s 29 billion Kisses a year. There are 305 million people in the U.S. (more now, they just keep coming….). So figure almost one hundred Hershey’s Kisses per person—man, woman, infant, child–per year. And if you’re not eating your share, someone else is!

Hershey’s introduced variations like almonds and Hugs in the 1990s. Then in 2002 they started producing “Special Edition” flavors. These are all over the place: cookies and cream, strawberry, pumpkin spice, pickle. Oh, not pickle yet. Well, I’m sure it’s coming. Anyway, if you want to see what kinds of Kisses have come and gone, visit Zoe’s Online Hershey’s Kisses Collection. Zoe is 11 years old and has been collecting Kisses for five years. She maintains a lovely online collection of more than 55 Kisses flavors. I had no idea!

Save the Earth, Eat a Kiss: the foil wrapper on Hershey’s Kisses is recyclable. So throw it in the green bin, or better yet, reuse it to make a fake Hershey’s Kiss. See if you can get away with it, but watch out, as our next item demonstrates.

Hershey’s Chocolate is litigious when it comes to defending their trademarks. In April 2009, they went after artisinal chocolatier Jacques Torres for a high-end truffle he was selling as “Champagne Kisses.” Each Champagne Kiss costs $1.50, for which you get a chocolate cube filled with champagne truffle (made with real Tattinger Rose Champagne) and decorated with a red lips kissing mark. Here’s what Hershey alleged:

Hershey is concerned that Jacques Torres Chocolate’s use of the mark KISS or KISSES may cause consumer confusion with Hershey as to the source, sponsorship, or affiliation of Jacques Torres Chocolate’s product.

And here’s what Torres, via his lawyer, replied:

Mr. Torres will not discontinue his use of the term “Champagne Kiss.” We believe that this is yet another example of a giant, monolithic corporation attempting to take advantage of “the little guy,” in this case, a world-renowned artisan from France. … Mr. Torres vigorously disputes your contention that he is using or infringing upon a Hershey-owned trademark. The analogy might be similar to Chevrolet complaining that Rolls Royce is infringing on the Chevrolet trademark.

Take that, Hershey! Read more: Hershey’s v. Jacques Torres: The Lawyer-to-Lawyer Slapdown! — Grub Street New York

There have been cases where Hershey’s Chocolate was much more clearly protecting itself from legitimate infringers. An early case involved the Hershey Creamery, also of Lancaster, Pennsylvania; the Hershey family of the Hershey Creamery was no relation to Milton Hershey. The Creamery was mostly an ice cream business, but in the ‘teens began producing chocolate candy and cocoa. Then there was trouble:

Milton S. Hershey learned of the candies in 1919, and assigned Charles Ziegler to “find instances of confusion and infringement and of unfair competition”. Ziegler found that in addition to making similar products, the packaging used on the chocolates resembled that used by Hershey Company—then called Hershey Chocolate. Investigating complaints from retailers in Boston, New York, Binghamtom, Norfolk, and Richmond, Ziegler reportedly found that retailers were confusing the two products, and sometimes deliberately replacing the higher priced Hershey Company products with the Hershey Creamery products. In Harrisburg, Ziegler found a display of Hershey Creamery “Hershey Kisses” which were bite-sized chocolate drops similar to the chocolate company’s creations. After cease and desist letters failed to resolve the problem, Milton Hershey filed suit in 1921 in the United States District Court for the Middle District of Pennsylvania for trademark infringement. In 1926, a district judged partially sided with Hershey Chocolate and prohibited the creamery from using the name Hershey’s in connection with “manufacture, advertisement, distribution, or sale of, among other things, chocolate, cocoa, chocolate confections, and chocolate or cocoa products”.

Source: Wikipedia entry for Hershey Creamery. Wiki sources: D’Antonio, Michael. “A Betting Man”. Hershey: Milton S. Hershey’s Extraordinary Life of Wealth, Empire, and Utopian Dreams. Simon and Schuster, p. 184–185. Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272 (3d Cir. 1991)

A fine book on the Hershey Chocolate story is Michael D’Antonio’s Hershey: Milton S. Hershey’s Extraordinary Life of Wealth, Empire, and Utopian Dreams published by Simon and Schuster in 2006. D’Antonio is an independent journalist, and the book is an “unauthorized” biography. That doesn’t mean it’s bad, it just means the book is not a product of the Hershey Company. So when Hershey caught wind of the book’s cover just a month before the book was to be released, they flipped out. I’m not surprised: the book looks just like a Hershey Bar.

Hershey went to  court to get an injunction to stop the publication of the book, based on a violation of its image trademarks. In the suit, they stated:

Hershey does not object to the content of defendant’s book, or to the mere use of the word ‘Hershey’ in the title of the book. However, defendant has designed and adopted a dust jacket for the book which extensively uses Hershey’s well-known marks and trade dress beyond any manner permissible under law.

Hershey didn’t win this one. The case settled out of court: the book went forward with the trademark images, but with a disclaimer on the cover that says “Neither Authorized Nor Sponsored by the Hershey Company.” As for the image of the Hershey bar, it’s up to readers to figure out they can’t eat it.

Related Posts:

  • Hershey’s: Why a Kiss is Just a Kiss
  • Kissing Cousins: the Hershey’s Kiss and the Wilbur Bud
  • Entry filed under: Chocolate, Current Candy News. Tags: , , , , , , .

    Hershey’s: Why a Kiss is Just a Kiss “Decayed Rocks Used in Candy”

    2 Comments Add your own

    • 1. Mark D.  |  March 10, 2010 at 12:27 pm

      Very interesting, I guess our litigious society wasn’t created in the last 20 years. Which goes to show that big business is big business in any century. Great article!

      • 2. CandyProfessor  |  March 10, 2010 at 7:14 pm

        Big business, you said it! I’m so amazed at how, in candy at least, the early days of trademark were like the legal wild west. A lawyer friend informs me that (especially in tech) amassing and challenging patents is currently viewed as a viable business plan. At least in the old days, companies used patent and trademark to protect their actual businesses. And I can see why they needed it, the Hershey’s Creamery story is not at all surprising. Thanks for reading!


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