Trademark

by Mike Masnick


Filed Under:
candy, dove, packaging, reeses, trademark

Companies:
hershey, mars



More Extremely Silly Trademark Lawsuits: Mars vs. Hershey Over Totally Different Looking Wrappers

from the you-put-your-chocolate-in-my-trademark-lawyer dept

A ton of people have been submitting variations on this story of how candy company Hershey is suing candy company Mars, claiming that Mars' new Dove brand of chocolate and peanut butter candies has packaging that looks too much like Hershey's Reese's Peanut Butter Cups. Most of the stories I saw didn't have any actual images to show, but the link here has the following two images:
And, similar to the recent legal spat we covered concerning beer cans, the wrappers look like they have two totally different designs. Given both of these cases happened in such close proximity, it does make you wonder if consumer goods companies are getting much more aggressive in trying to claim any package that has some incredibly superficial similarities now represents trademark infringement.

Update: As pointed out in the comments, Hershey's has a couple of newer packages that do appear a bit more similar, but still pretty different:

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  • identicon
    The Root, 2 Dec 2010 @ 2:33am

    My gosh

    They do NOT look just like each other!

    One's brown, the other's orange. Can't companies tell the difference?!?! It's just a freking wrapper!!!!

    Glad i'm not in the mood for dissing both companies in a video... Oh wait, I just might..

    reply to this | link to this | view in chronology ]

  • identicon
    Pete Austin, 2 Dec 2010 @ 3:10am

    This version is slightly more similar

    http://www.hersheys.com/reeses/products.aspx#/REESE’S-Peanut-Butter-Cups-Miniatures

    But, seriously, Reece's packaging looks like crap compared to the Mars packaging. It's like Reeces are stuck in 1950. I can't imagine anyone would want to copy it.

    reply to this | link to this | view in chronology ]

  • icon
    Revi (profile), 2 Dec 2010 @ 3:11am

    I'm sorry, maybe I'm just not seeing it but other than being rectangles and having the words: peanut butter milk chocolate on them are there ANY similarities?

    reply to this | link to this | view in chronology ]

  • icon
    mike allen (profile), 2 Dec 2010 @ 3:26am

    question can a moron in a hurry tell the difference. or worse can a judge in a cotton wool world tel the difference the moron might the judge mmm juries out on that one.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2010 @ 4:00am

    Hey, you got your trademark in my intellectual property. No you got your intellectual property in my trademark.

    Hey wait, this makes a great lawsuit.

    reply to this | link to this | view in chronology ]

  • icon
    Josef Anvil (profile), 2 Dec 2010 @ 4:40am

    The title says it all

    Extremely silly lawsuit. Yes a moron in a hurry can tell the difference. Ive been eating Reese's cups for decades and there is no way I would ever confuse the packaging with the Dove cups. Ummmm Brown vs Orange? Who the hell is confusing them?

    If Hershey's wins this it will be on a settlement to reduce legal costs, but in all fairness, MARS should have enough cash to suffer through this one and hopefully file a countersuit for frivolous litigation.

    reply to this | link to this | view in chronology ]

  • identicon
    Dr Michael Factor, 2 Dec 2010 @ 4:56am

    Hershy vs. Mars

    I have no doubt that there is a market segment of sense-challenged Hershey eaters. The packages are the same size and the same distinctive rectangular shape.

    Whilst not the same, orange and brown are after all related colours. They are closer on the palette than primary blue and its complimentary orange.

    This reminds me of a decision in Israel relating to allegedly distinctive gold coloured plastic ice cream tubs. See http://blog.ipfactor.co.il/2009/08/06/israel-ice-cream-wars-cool/

    reply to this | link to this | view in chronology ]

  • identicon
    Dr Michael Factor, 2 Dec 2010 @ 4:56am

    Hershy vs. Mars

    I have no doubt that there is a market segment of sense-challenged Hershey eaters. The packages are the same size and the same distinctive rectangular shape.

    Whilst not the same, orange and brown are after all related colours. They are closer on the palette than primary blue and its complimentary orange.

    This reminds me of a decision in Israel relating to allegedly distinctive gold coloured plastic ice cream tubs. See http://blog.ipfactor.co.il/2009/08/06/israel-ice-cream-wars-cool/

    reply to this | link to this | view in chronology ]

    • icon
      Chronno S. Trigger (profile), 2 Dec 2010 @ 5:41am

      Re: Hershy vs. Mars

      I'm color blind, the exact color blindness that you would be referring to. While separately I may have a hard time making out that the Dove package is brown, even to my crappy eyes it's noticeably different then the Reese's package.

      Just for the fun of it I threw both pictures into Gimp and made them gray scale, they still look completely different.

      All the Reese's packages have that tie-dyed look and all the Dove packages have that liquid chocolate thing going. I can't see anyone making that kind of mistake unless they were completely blind. And that would be a hole mess of trouble if that argument worked (think any candy bar vs any other candy bar).

      I won't even go into "distinctive rectangular shape".

      reply to this | link to this | view in chronology ]

  • identicon
    Oh THAT Brian!, 2 Dec 2010 @ 5:08am

    Does Coke know?

    OMG! The Dove package has something similar to the 'Dynamic Ribbon Device' that is prominent on Coca Cola cans. (That little orange swirl along the bottom of the package.)

    Maybe Coke should step in and join the case as a friend of Hersheys! I'll bet everyone gets the Dove package mixed up with a can of Coke...

    reply to this | link to this | view in chronology ]

  • identicon
    abc gum, 2 Dec 2010 @ 5:34am

    Well - thank goodness that Intellectual Property laws are in place to stop this egregious theft.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2010 @ 5:45am

    I LOST RESPECT FOR HERSHEYS WHEN THEY SUED THE FURNITURE COMPANY.

    Now I just have the Hersheies Squirts as that is what they have become. CRAP

    reply to this | link to this | view in chronology ]

  • identicon
    chester, 2 Dec 2010 @ 6:43am

    Oh I love Dove chocolate and I like Reese peanut butter cups. Thanks Hershey for bringing this to my intention. Next time im out ill have to try Doves instead.

    reply to this | link to this | view in chronology ]

  • identicon
    Cowardly Anon, 2 Dec 2010 @ 6:44am

    Ok, with the cans you showed last week, I could see how a moron in a hurry could confuse the two of them. Without taking a closer look I would have assumed they were different flavours of the same brand.

    This one on the other hand....wtf? Honestly. Not even a blind person could confuse those two.

    I like Reese's Peanut Butter Cups...I'm going to be sad when Hershey goes under b/c of money wasting crap like this and I can't get them any more.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 2 Dec 2010 @ 11:38am

      Re:

      This one on the other hand....wtf? Honestly. Not even a blind person could confuse those two.

      Actually I think those are the only people who could confuse them.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2010 @ 7:21am

    Is it possible that they aren't claiming the old packaging looks similar, but instead that the *new* packaging looks similar?

    http://www.hersheys.com/assets/images/reeses/products/product_cremes.png

    I still think they are pretty different, but it looks a lot closer than what was posted in the article.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2010 @ 8:01am

    aren't most of their customers to stupid know the difference? That's what I take away from this =)

    reply to this | link to this | view in chronology ]

  • icon
    Darren (profile), 2 Dec 2010 @ 9:09am

    Does it matter?

    I don't think that any similarities matter, really. All that matters is that - if this case is settled - it will act as precedent for other frivolous cases of the same sort. If it's not looking too good for Hershey, the just drop the suit.
    More legal drivel systemic in our over-litigated society.

    reply to this | link to this | view in chronology ]

  • icon
    Mike Masnick (profile), 2 Dec 2010 @ 9:43am

    Updated...

    Updated the post with the other Reeses products that do look a bit more similar...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2010 @ 12:09pm

    Assuming those are the right images, the plaintiffs have an awfully tough uphill battle.

    I'm intriqued, though, that Mike thinks the packing in this case is "a bit more similar" whereas he thought the packaging in the beverage case was not similar at all. I thought the beverage cans were pretty similar.

    reply to this | link to this | view in chronology ]

    • icon
      Gabriel Tane (profile), 2 Dec 2010 @ 12:52pm

      Re:

      I don't think they look the same at all. The only thing similar is that they both have EEEEXTREEEEM TRYBAL INKZ (that's 'extreme tribal ink' for those who don't speak/read Extreme)all over them. And just about everything marketed to the... which letter are we on for generations now?... use excessive (sorry... 'Extreme') amounts of that crap too. So how is a competitor an infringer and a clothing manufacturer with the same design elements not?

      reply to this | link to this | view in chronology ]

  • identicon
    hmm, 2 Dec 2010 @ 1:36pm

    well

    How about Dove soap sues Mars because people might try to wash themselves with a chocolatey peanut butter confection believing it was dove soap?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2010 @ 2:33pm

    Lets apply a gaussian blur 20 and see if they look a like. That would probably qualify as the test for "A moron in a hurry".

    reply to this | link to this | view in chronology ]

  • icon
    okwhen (profile), 2 Dec 2010 @ 2:49pm

    This is completely off topic however, if anyone is annoyed tape your eyelids open and place chocolate on your eyeball for a few hours and then get back to me. People purchasing items from the Mars corporation are contributing to the cruelty of animals. Mars continues to subject animals to horrific testing all for the sake of candy. Please purchase an alternative.

    reply to this | link to this | view in chronology ]

  • identicon
    brit, 3 Dec 2010 @ 5:25am

    perspective

    well from a marketer's perspective I think the packaging shown for the "select" products from Reese's looks very similar. it looks like they could have been made from the ame template.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Dec 2010 @ 5:26am

      Re: perspective

      **same sorry

      reply to this | link to this | view in chronology ]

    • identicon
      Not an electronic Rodent, 5 Dec 2010 @ 10:01am

      Re: perspective

      well from a marketer's perspective I think the packaging shown for the "select" products from Reese's looks very similar. it looks like they could have been made from the ame template.
      What? In as much as the packages are a similar shape, the curved (but different shaped) "design" goes a similar direction the logo is top left and both have an idealised picture of the product on? That's a bit of a stretch don't you think? What in those similarities isn't wholly generic? I know the "morons" are in even more of a hurry these days, but I can't see any confusion from even the biggest moron in the greatest hurry (well except maybe a lawyer).

      Besides when I looked at that I immediately recognised "Dove" as being the american brand name for what's called "Galaxy" in england and they've used a similar style on their packageing over here for ages, which suggests to me it has far more to do with "corporate branding image" than anything else. Just coz they decided to offer another type of filling doesn't seem a good excuse for a lawsuit.

      reply to this | link to this | view in chronology ]

  • identicon
    Heidi T, 10 Dec 2010 @ 12:25pm

    Note

    Please note that the article admitted that they couldn't find the packaging that the lawsuit is pertaining to. We don't actually know which items are being compared.

    reply to this | link to this | view in chronology ]

  • icon
    pesti (profile), 27 Sep 2011 @ 6:27pm

    Chocolate Lovers

    I come from that ever growing community of "Chocolate Lovers"
    and I definitely know the difference between a Hershey product and a Dove/Mars. With all the damn consumer surveys they do for everything else, you think that Hershey would spend a little money doing one of those on the subject instead of a lot more on litigation.....Every time I have to spend a $1.50 on something that used to cost .50 cents, I see the day coming that I can no longer afford to indulge. Why can't big companies like these take note of consumer popularity and loyalty and pass down the perks by spending less on advertisement (*which they hardly need now) and stupid litigation like this one.

    reply to this | link to this | view in chronology ]


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