Hershey Chocolate “Trade Dress” Action v. Maryland Candidate “Hershey”

By Jeff Morris

Hershey, PA is a small town that smells like chocolate because of the manufacturing plant there.  It also has a an amusement park and a Hershey Company factory tour.  More important, from a legal perspective, is that some 90% of the American public knows the “trade dress” Hershey has used for over a hundred years to identify the source of its products, and the Hershey companies have numerous federally registered trademarks with the word HERSHEY in white or silver, in a particular size and font, on a black or dark brown or maroon background.   You know, something like this, from www.hersheyarchives.org:

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Recently, in three different campaigns, a candidate for political office in Maryland whose last name is Hershey used signs and a campaign logo featuring his name, the least egregiously similar logo being:

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That’s a very muted version of the Maryland state flag in the background.  There are some differences, but it certainly seems to me that when, in April 2014, the company sued for trademark infringement, they had a pretty strong case for something being wrong.  The judge agreed and granted the company a preliminary injunction in July 2014.  Although the ruling quite reasonably came to the opposite conclusion, there is a legitimate dispute as to whether the senator, who after all is just using his own name, is creating any real confusion in the public’s mind that he is in fact a chocolate bar, or that the Hershey company is running for office, to put it in “snarky” terms.  The other interesting question, whether political activities are “services,” is settled law.

Consider, then, why did he do it?  The answer is, at least in part, simply because of the very strength of the Hershey trade dress; misappropriating it has value.

Here’s a link to the memorandum opinion on the case, from the U.S. District Court for the Northern District of Maryland for those of you who feel a law-school-era need to read the entire case.

For more information about trademarks, generally, contact me, Jeff Morris, morris@elliott-davis.com (412)434-4911 ext. 31

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