I’m sitting in my Etsyified office on a beautiful spring afternoon eating some delicious Hershey’s Kisses and researching a newsworthy and entertaining pending issue for the Etsy community to judge. I’m in heaven!
I unwrap the silver foil from the bite-sized tear-drop chocolate morsel and pop it into my mouth. Although this treat is delicious, I do sometimes prefer the more expensive Jacque Torres chocolates made just a few blocks away in Brooklyn.
Hershey’s is one of the largest chocolate manufacturers in North America. In 1907, Hershey’s introduced its small flat-bottomed conical-shaped pieces of chocolate named “Hershey’s Kisses.” Hershey Chocolate & Confectionary Corporation, a subsidiary of The Hershey Company, owns the U.S. federal trademark registration for the mark “Kisses.”
Brooklyn-based Jacques Torres Chocolate specializes in fresh, hand-crafted chocolates. Jacques Torres sells “Champagne Kiss” truffles, which contain Taittinger Rose Champagne, and cost around $1.50 each.
Recently, Hershey’s attorneys sent Mr. Torres a letter stating “Hershey is concerned that Jacques Torres Chocolate’s use of the mark KISS or KISSES may cause consumer confusion with Hershey as to the source, sponsorship, or affiliate of Jacque Torres Chocolate’s product.” The letter went on to demand that Mr. Torres immediately discontinue the use of the mark KISS or KISSES in connection with its chocolate candies.
A lawyer for Torres replied and offered a number of examples to substantiate their claim that any concern of “consumer confusion” is without merit. According to Torres’s lawyer, Jacque Torres chocolates are “high end” and are not marketed like Hershey’s products as the first ingredient in Torres’ Kisses is champagne. Also the shape of the chocolates is flat and unlike a Hershey’s Kiss.
According to the United States Patent and Trademark Office, a trademark protects “words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.” To find a likelihood of confusion, the parties will examine 1) the similarity of the marks; and 2) the commercial relationship between the goods and/or services listed in the application.
This potential lawsuit is very near and dear to my heart because I am a fan of both types of chocolate. Do you think that Hershey’s has a point? Is there a likelihood of confusion? In the case of the Kisses, You Be the Judge and post in the comments below!