27 July 2020TrademarksRory O'Neill

‘Art toy’ maker defends Kit-Kat parody

A graphic designer has sued US chocolate maker  The Hershey Company, seeking a court declaration that his ‘art toys’ do not infringe the company’s trademarks.

In his complaint, filed on Friday, July 24 at the US District Court for the Eastern District of New York, Andrew Bell accused Hershey of threatening to shut down the production and distribution of his collectible, vinyl-made “art toys”.

At issue are two of Bell’s designer toys, the Kill Kat and Kisses of Death, which parody the Kit-Kat and Kisses brands, respectively.

Kisses is an original Hershey’s brand launched in 1967, while Hershey’s is the exclusive licensee for the  Nestlé-owned  Kit-Kat brand in the US.

According to Bell, who lectures at the Fashion Institute of Technology and the Pratt Institute, the toys are “part fun spoof and part social comment” over Hershey’s place in the sugar-based snack market.

This means that they should be immune from trademark infringement complaints brought by Hershey’s, the artist argued.

“Kill Kats and Kisses of Death are part of a sustained campaign by Bell to comment in his art on such themes, including the processed food industry’s impact on health. As such they are entitled to First Amendment protection as expressive works, as parodies and social commentary,” said the complaint.

Bell claims that he is under threat of a trademark infringement lawsuit from Hershey’s, which has sent cease-and-desist letters to the graphic designer.

Hershey’s has also threatened to seek an injunction, damages, seizure of allegedly infringing product, and its attorneys’ fees, Bell’s complaint said.

The designer said that his toys were accompanied on his online shop by an explicit disclaimer clarifying that they had not been endorsed by the US chocolate brand.

Bell, a former Marvel freelancer, said Hershey’s was the perfect target for his satire: “Hershey’s is the archetypal American candy manufacturer, familiar to all through its famous brands, resort, and family theme park. When Hershey’s advertises its attractions in Hershey, Pennsylvania, with the trademarked line ‘Hershey The Sweetest Place on Earth,’ it is celebrating both the sugary sweetness of its candy and the small-town wholesomeness of its image.”

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