Hershey Sues Mars for Broken Trade Dress Promises

By Joseph Mandour on July 8, 2011

candy-easter-cadbury-thumb-200x150-30619 San Diego, CA – Hershey Co. recently filed suit in the United States District Court for the Middle District of Pennsylvania in Harrisburg, PA against candy producing rival Mars, Inc.

The complaint, filed in late November, accuses Mars, Inc. of trademark infringement, trademark dilution, and unfair competition regarding the packaging of its Dove peanut butter Promises candies. The Hershey Co., located in Hershey Pennsylvania, named after founder Milton S. Hershey, is America’s largest producer of chocolate candy products, and is perhaps most famous for the chocolate Hershey bar and Reese’s Peanut Butter Cups products. Virginia based Mars, Inc. is the second largest chocolate candy producer whose products include the Dove chocolate products, M&M’s, and Snickers. In addition Mars, Inc. is America’s largest confectionery company after a recent 23 billion dollar acquisition of Wm. Wrigley Jr. Co., famous for their chewing gum products.

Hershey claims that the packaging for Mars’ Dove peanut butter Promises closely mimics the packaging of Reese’s Peanut Butter Cups as set out in U.S. Trademark Registration No. 2,256,226. As set out in the registration, the trademark consists of: “an orange-colored background covering the entirety of the packaging for the goods. The orange color is approximately equivalent to pantone 165C. The mark consists of color alone”. The orange, brown, and tan Reese’s packaging color scheme has been used by Hershey for decades, and Hershey claims that this pattern has acquired secondary meaning, creating an association between these colors and the Reese’s product. The lawsuit alleges that Mars, Inc.’s use of similar colors infringes Hershey’s trademark for the Reese’s product line and will unfairly confuse costumers.

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