San Antonio, Texas, hasn’t always had the best reputation as a fit and healthy city. The intersection of so many carnitas, churros, and freeways—lacking city-wide bicycle lanes—combine for a recipe that turns out to be something like atherosclerosis. Or so Men’s Fitness Magazine has previously reported. That is not to say that everyone in town is overweight, or that trademark attorneys in San Antonio are too busy eating candy to be paying attention to the trademark lawsuit that’s engrossing yet another of their favorite chocolate brands. In fact, despite its notoriously being known as overweight, the new March issue of Men’s Fitness Magazine suggests that people are getting their larger rear ends in gear and testing out what few bike lanes the city has.
In any case, the accusations filed by The Hershey Company in federal court are drawing attention to the candy maker, despite who is actually paying attention. Apparently a relatively smaller importer of candy is allegedly infringing on Hershey’s trademarks for Reese’s, York, Malteser, Cadbury, Kit Kat, and Rolo by shipping other candy bars into the U.S. by the millions in packaging that looks deceptively similar to that trademarked by Hershey. To be valid, trademark attorneys in San Antonio who are actually paying attention, like Douglas Shumway, would know that the products actually have to be “confusing consumers” for Hershey to have a valid claim. (A photo comparing the products can be seen in the news article linked above).
And even if Shumway and other trademark attorneys in San Antonio are distracted by their apparently shrinking waistlines to be shopping on the candy aisles and having seen the chocolate wrappings in person, the stakes are high enough for this case that somebody ought to be paying attention. Hershey is seeking “triple damages,” from the imposter importer, and “given the profits Hershey lists for its own products,” that have totaled almost $10 billion inside the U.S. in the last five years, this trademark lawsuit is kind of a big deal.
It’s not just how they look, either, Hershey contends. The importer’s names “Yorkie and Maltesers” are too similar to Hershey’s trademarked products “York and Malteser” for candy eaters (shrinking though they may be in San Antonio) to distinguish who they’re buying from. It’s doubtful the candy eaters care. But Hershey sure does. Enough to ask the federal judge for “an order blocking continued alleged infringement” by asking that the importer be ordered to “turn over its products for destruction and pay for ‘corrective advertising’ to address the harm” caused by branding confusion.
Shumway and other trademark attorneys in San Antonio might not see this as a tragedy, especially if they’re getting fitter by the minute, but for all of us other candy eaters, our first response to this drastic and seemingly hasty and unnecessary action is something like, “Hey now!” when we contemplate the destruction of all that good chocolate. We know that Hershey has a reputation as much as San Antonio does—not for being overweight (which would be less than ironic), but for “fiercely protecting” its trademarks. But destroying candy? Even its lawyers should draw a line somewhere.