Can A Moron In A Hurry Tell The Difference Between A Hershey Bar And A Couch?

from the yummy-cushions... dept

There are some legal decisions that just make no sense. Gunnar writes in to let us know of a story in Michigan, where a judge has ordered a furniture store to stop using a design that shows a couch being unwrapped from a candy bar. Hershey’s sued the furniture company, claiming it violated their trademark on unwrapping chocolate bars:

Art Van
But here’s the thing: even the judge admits that trademark law shouldn’t apply here because it’s a totally different business and there’s little chance of customer confusion: “While both parties cater to the general public, there is no indication that their customers are predominantly the same. Even if their customer bases overlap to some extent … the risk of consumers confusing a furniture outlet with a candy store, or vice versa, appears remote.” Those are all things a judge says right before denying the trademark claim, but in this case, it went the other way. If a moron in a hurry isn’t likely to be confused, then there’s no trademark infringement. The furniture store wasn’t even using the image yet — but just had it in a contest for truck designs. At least the company hadn’t spent too much money painting up all the trucks.

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Companies: hershey

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Comments on “Can A Moron In A Hurry Tell The Difference Between A Hershey Bar And A Couch?”

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Anonymous Coward says:

It was Dilution

You are unnecessarily inflammatory. As you well know, it’s perfectly acceptable to plead alternate theories. At least ACKNOWLEDGE that the decision was based on a different legal theory than likelihood of confusion. But you prefer to play to your mindless chorus of sycophants rather than actually discuss the merits of the legal theory upon which the decision was made. Come to whatever conclusion you choose on it, but at least don’t cheat by misstating the holding of the case.

Mike (profile) says:

Re: It was Dilution

You are unnecessarily inflammatory.

No, actually, it was quite necessary. Because this is a ridiculous ruling and deserves to be treated as such.

it’s perfectly acceptable to plead alternate theories

We’ve discussed in the past why dilution doesn’t make sense for trademark law. I’m sorry that you disapprove but I am still allowed to have an opinion and speak my mind. Or are you going to find a law against that?

But you prefer to play to your mindless chorus of sycophants rather than actually discuss the merits of the legal theory upon which the decision was made.

Dude, it’s a silly lawsuit. This isn’t the law review. I just thought the story was amusing.

In the past, I have discussed the merits of the legal theory of dilution, but this was just a fun post. You might want to try looking around for that sense of humor you lost. It’s rather helpful.

Anonymous Coward says:

Re: Re: It was Dilution

I search in vain for the word “dilution” in your original post. That’s the point, you didn’t say it was a dilution decision, you used misdirection and misinformation to suggest it was a likelihood of confusion decision. If you disagree with dilution, and many smart legal minds do, that’s fine, but be intellectually honest in your posting.

bigpicture says:

Re: It was Dilution

The moron comment is just AOK. At some point you just got to ask what is reasonable? Because even the law, stupid as it may seem sometimes, has the “reasonable men” expectation test.

Also Hershey is not the only company that wraps chocolate bars, it is only a small player, (both Mars and Cadbury are bigger)so why did some of these other big chocolate bar companies not object? Is it because they are reasonable?

Gunnar says:

Re: Re: It was Dilution

“Also Hershey is not the only company that wraps chocolate bars, it is only a small player, (both Mars and Cadbury are bigger)so why did some of these other big chocolate bar companies not object? Is it because they are reasonable?”

Hershey is the biggest chocolate seller in the U.S. Mars and Cadbury are bigger candy makers, but Hershey focuses on chocolate.

“Hershey’s trying take the focus from the fact they are moving their PA plant to Mexico and putting all those people out of work.”

No they’re not. They’re moving some of their operations to Mexico, and that was announced more than a year ago.

The Pit Crew says:

Re: It was Dilution

There’s the issue– Introduction of a bill is not done by lawyers, but by congress. And Congress is elected by the people, not by lawyers. And Congress is made up of regular people who can see what your doing.

Government For The People and By The People, not the wealthy and well off…. Even though the current administration seems to think otherwise.

Google “Dana Perino The American people have input every four years”

So dance, my puppet, dance!

Anonymous Coward says:

Re: It was Dilution

Yea, because millions of people unwrapping millions of things that aren’t hersheys chocolate bars isn’t causing dilution. in fact, i’ll say its a safe bet to say that there are more things getting unwrapped that aren’t hershey bars than actually are hershey bars.

The dilution argument is still just as ridiculous. Keep in mind, trademark was devised to protect the consumer, not the company. I fail to see how that goal was achieved here. Maybe you’re a lawyer for that company or just really like hersheys, I dunno. But in either of those cases, I’d suggest a radical change in your life because you’re making mistakes either way. There are better law firms and better chocolate.

Anonymous Coward says:

So, wait. Hershey’s has a trademark on unwrapping chocolate bars? I’m assuming whatever trademark they have isn’t quite that ridiculous, but no matter what it is I can’t really see what kind of trademark Art Van is supposed to be violating here. Hershey’s does not have a trademark on chocolate bars, nor on the packaging style of foil-with-ends-sticking-out-of-the-wrapper, or else they’d already be in litigation with their actual competitors. The simplistic aesthetic of the fake bar is somewhat similar to a Hershey’s bar, but the colors and font are completely different. And all this is ignoring the fact that it’s a freaking couch.

What on earth was the judge thinking?

Elvis Oswald says:

Corporate Rule

The purpose of protecting trademarks is to stop someone from representing their product as another product… or to stop someone from doing damage to a brand by misrepresenting the brand in such a way as to cause a loss.
Obviously, the furniture store is not trying to fool people into thinking a couch is a candy bar… and they are not harming the brand – unless seeing that makes you think Hershey is making candy out of furniture (and that makes you not buy hershey bars)

For the fascist defending the ruling – compare this to an 83 year old woman with 3rd degree burns on her genitals caused by coffee served by a corporation who had already received complaints about and paid for injuries caused by their coffee that was waaay too hot.
Funny how people will defend a faceless corporation against their own grandmother.


Anonymous Coward says:

Re: Corporate Rule

compare this to an 83 year old woman with 3rd degree burns on her genitals caused by coffee […] Funny how people will defend a faceless corporation against their own grandmother.

Again, if the product were defective I’d blame McD’s. Say, the insulated cup could not withstand the blistering heat, and the bottom melted out thus causing her injury – fine. THAT is corporate liablility.

She took deliberate actions that were directly responsible for her injury. That is, she was complicit in the damage she suffered. That is her fault, and not corporate liability.

It’s not about “my grandma”, nor “big faceless corporations”. It’s about who did what to who.

Anonymous Coward says:

Re: Re: Re: Corporate Rule

Though there was scientific reasoning for it to be that hot. It was the optimal temperature for the release of smell and taste. The woman put the cup in between her legs and then continued driving. Her pants were sweatpants and that caused it to not only soak up the coffee but keep it in contact with her skin. Should the pants company be sued since it can cause burns to happen more easily than with other kinds of materials?

She had enough knowledge to know that coffee is hot. She had enough knowledge to know that coffee can burn, maybe not third degree, but she knew enough that it can cause harm. She still then performed an action that increased her chances of injury, knowingly. She may not have known she’d be hurt that much, but she had to know she would get hurt if she spilled coffee on herself. I have little sympathy for that woman. Sometimes you need common sense. If I do something that causes injury, I’m not going to sue because “It cause more injury than I thought it should.”

Anonymous Coward says:

trademark unwrapping chocolate bars?

Am I in violation of their trademark when I unwrap another brand of chocolate bar?

Are they the only brand of chocolate that’s allowed to wrap their bars?

Is chocolate the only thing allowed to be wrapped? I might just get meself confused when my butcher wraps my pork chops in paper. Can I sue Hersey’s for not making sure that everything I unwrap is chocolate?

Vidanto says:

Tastes a bit off ... oh, I see it's a couch

Seems odd that Judge Roberts gave this order while noting that the risk anyone will confuse a candy store and a furniture store is remote. I suppose the line has to be drawn, and a courtroom is a logical place for that to happen… doesn’t sound like there will be an appeal, though, and this leads us back to the old big-companies-get-what-they-want chestnut. Meanwhile, how is Hershey’s stock doing?

James Gresham says:

The dilution claim, the part which the judge accepted as grounds to grant the TRO is not based on the confusion standard. The fact that a news article described the picture as a sofa “partially wrapped like a Hersheys bar” and that the original design had a more brown colour even closer to Hersheys do kinda suggest that the furniture company were trying to use the brands image.

Bear in mind that according to the summary, the defence to this charge wasn’t “It isn’t a Hersheys bar” but “It’s a parody”. Isn’t that an admission that it was deliberately meant to look like a Hersheys bar, and the question is therefore simply is it a legitimate parody or not?

Will (again) (profile) says:

Re: James Gresham, comment

You know, I wonder if I can sue a law firm for poor representation.

I mean, if I was the furniture company and I paid a laywer to represent me to the fullest extent of the law, could I then get another law firm to sue that first lawyer or law firm for not winning the case after I win in an appeals court?

1) Did the company, or the artist, make use the words, “Like a Hershey’s Bar” or was that an independent reference from a newspaper article? If it was the Artist or the newspaper, couldn’t Art Vans now sue them for losses? Wow, now Art Vans, the Newspaper, and the art community will all boycott Hersheys, right? Oh, and then everyone else in the world who felt traumatized over this could sue anyone else with a candy wrapper for unwittingly subjecting them to a reminder of this pain.

2) Did the company use the words, “Its a Parody”, or did the lawyer? Because either way, it was poor judgement. But still, do people sue SNL? What about the makers of those parody gag gifts that bear far mor resemblence to the actual product?

3) What about Hersheys’ exports to other countries? Should I advise my Korean friends to sue Hersheys for dilution if their wrapper here in Korea bears resemblence to a domestic brand? If I did, would I then be sued back in the US for slander? Is it safe to come home next month?

4) And I agree, Hershey’s isn’t even good chocolate anymore. The other day, I bought a Symphony bar, remembering fondly how Symphony was finer chocolate than Hersheys. I know that its the same brand. Could I have sued Hersheys for false advertising? Actually, I know that I couldn’t because Hersheys has that little clause on the paper and foil wrapper still used for those larger bars that I can return a faulty product for a full refund.

I hope Hersheys and Art Van do come across this post.

@Hersheys’ Lawyers: Please stop doing damage to the future of the US copyright system, to Hersheys, and to America. Copyrights are here to protect, not destroy. Isn’t Krackel a Hershey product? So a red label isn’t any better than Brown. What about the yellow background? Can we say, Mr. Goodbar?

@Art Van: Get better legal counsel. Get it before you advertise. Certainly get it before preparing a defense. I am truly sorry you lost. If no one else supports you, I do.

@Congress: Stop.

Dumb-founded says:

Help Advertise

Wouldn’t this help promote Hersheys bars? If I seen the add on the side of the truck, it would make me want to go buy a Hersheys candy bar! And Hersheys didn’t even have to pay for the advertisement!

Hersheys should be thanking Art Vans for the free advertisement. Well maybe they think they could get more by sueing. It is the American way now.

Cynic says:

OK, so I went to the link for the actual ruling and I read the “court” saying something stupid like: “Plaintiff’s chocolate bar trade dress has acquired a secondary meaning that entitles it to federal trademark protection.”

So now am I supposed to see the error in my ways when I first laid eyes on this article and thought “another stupid judge”? Now I’m supposed to think that this was a carefully thought out, intelligent decision by the judge to believe that because for years people have been eating chocolate bars by unwrapping them first, that now, through legal pixie dust, the trademark has now enlarged? Wow, I wonder what that judge’s IQ is.

CSIN (user link) says:

Lawyers Lawyers Everywhere, but not a gun in site...

I think it’s funny to see these people coming on here and debating the article as if it where the actual case judgment being carried out online.

The sofa was wrapped like a candy bar. Not like a Hershey’s Bar. There are many brands that use the same style wrapping. And the “Brown” color is used on many different brands. The wrapper on Dove bars uses a foil wrapper with a brown paper outside as well, should they sue?

The idea that this is an okay lawsuit because of dilution is asinine. Anyone that thinks copyright or patent lawsuits are for anything other then name brand protection are dilusional. Get a life and stop trying to act like a lawyer. (And if you are one… Step into traffic.)

Anonymous Coward says:

Re: Lawyers Lawyers Everywhere, but not a gun in site...

“Anyone that thinks copyright or patent lawsuits are for anything other then name brand protection are dilusional.”

This is a trademark matter that does not involve either patent or copyright law. It involves trademark law, an entirely different matter.

BTW, no one is saying that this suit is “great” and chock full of “merit”. What they are saying, myself included, is that if one wants to write about a court decision, the best source for information is the decision itself…and not some blog written by someone who most certainly never bothered to read the decision.

Mark Regan (user link) says:


Thank God for judicial intervention — I was just going to eat that couch.

Seriously, I had thought Hershey had abandoned that wrapper design when they switched their process to all plastic that you need a pair of scissors to open. When I called them up and told them of my difficulty in opening the tough plastic, they told me it saved them millions of dollars a year in expenses, and insinuated they didn’t need my business, so I canceled my standing weekly order for a 24 count box from my local retail outlet each week.

Maybe I ought to sue Hershey for interfering with my RIGHT to open their chocolate bar easily using the design they claim they still have the rights to, but have actually abandoned, unless some furniture company wants to unload a few couches.

Hershey USED to be a good company with a good product. Now they are a BAD company with a good product.

Apple, are you listening?

John (profile) says:


A few points:

1) I agree with the above poster that the van company had terrible legal counsel. The judge basically agreed with them in his statements, but then ruled against them? What??

2) How in the words is unwrapping a bar of chocolate an extension of trademark or however the judge worded it? Does this mean that opening *anything* can be an “extension”? If Apple started running ads showing a Mac being unwrapped, could they take ownership of a trademarked “computer being pulled out of a box”?
I’m sure that’s not what the founding fathers had in mind when they created the trademark and copyright system?

And, again, how does allowing Hershey to stop a van company from showing a sofa “innovate” or “promote the science”?

3) Where was this case heard? Why do I get the feeling it was in Hershey’s home town of (surprise) Hershey, PA? And who’s the biggest employer in Hershey? I’m be willing to guess it’s Hershey. And who has the most money and the biggest team of attorneys in the town of Hershey?

Can anyone say “not even close to a fair trial”? I hope the van’s legal team appeals because of this.

Though do they have the money to file an appeal and continue the fight? Or is it the usual story of the defendant giving up because they can’t afford any more money on the court case?

NullOp says:


Just when you think you’ve seen/heard the dumbest thing possible! I REALLY want to look back on my life and remember I sued a furniture company for making a couch look like a candy bar being unwrapped! I am certain that is what lawyers go to law school for. I’ll have to remind myself of who brought the suit so I can buy a different product. Remember folks, vote with your dollars!

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