Cookie company targeted in Hershey trademark suit
The conical configuration of Hershey’s Kisses is at the centre of a trademark lawsuit filed by US multinational company, The Hershey Company, on Tuesday, September 28.
The complaint, filed against The Cookie Department at the US District Court for the District of Pennsylvania, stated that Hershey adapted the ‘Kisses’ design mark in 1907 and has been using it in connection with chocolate candy ever since.
Hershey claimed that The Cookie Department has acted in bad faith in appropriating Hershey’s goodwill and/or in diluting the value of the ‘Kisses’ marks. According to its website, the California-based cookie company offers “keto friendly cookies” and first started as a local business in 2009.
Hershey referred to a multitude of US trademarks in its complaint, with the years of registration ranging from 1976 to 2018. These marks and configurations are used as part of its corporate logos and on social media, as well as being “pervasively displayed” on product packaging.
The iconic ‘Kisses’ marks feature an upwardly pointing tip and that there is a notable distinction between the ‘Kisses’ marks and the chocolate chip designs featuring dropping tips.
The Cookie Department allegedly uses a “stylised image of cookies featuring conical-shaped chocolate pieces on a baking sheet, which is substantially similar to the iconic conical configuration of the ‘Kisses’ marks”.
Hershey said that the California cookie company has not filed a trademark application for its logo, which includes conical shaped decorations.
According to the multinational company, The Cookie Department is displaying its infringing logo on its individually wrapped cookie products and other packaging, as well as on its website, in social media, and on promotional material.
The complaint noted that the taste of The Cookie Department’s products is substantially different to that of Hershey’s Kisses and, in particular, they do not taste as sweet. As a result, consumers are likely to be confused by the similar packaging of products that do not taste like those featuring Hershey’s Kisses as an ingredient.
The unauthorised use of the ‘Kisses’ marks is causing “substantial harm to Hershey’s valuable IP rights,” according to the lawsuit, which accused The Cookie Department of trademark infringement, trademark dilution, false designation or origin, and unfair competition.
Hershey has asked for preliminary and permanent injunctive relief in addition to triple damages.
Hershey made a number of other prayers for relief, including a request that The Cookie Department disseminate corrective advertising and that it recalls all infringing materials and products which can then be delivered up for destruction.
This is not the first time that Hershey’s Kisses have been at the centre of an IP dispute. Last year Hershey was hit with a trademark complaint targeting the multinational company’s seasonal product, Vampire Kisses, with the quality of the chocolate playing a central role in the suit.
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