orangenius
Business Trademarks

Hershey Sues Pot-Infused Chocolate Company

Hershey lawsuit

A word of caution to startup businesses: don’t play-off another company’s graphic designs; they can be very protective of their intellectual property. I know it’s tempting to use well-known images to jump-start your sales, but it’ll probably end up badly. Case in point; Pot-infused candy maker, TinctureBelle, thought using variations of recognizable Hershey product packaging would be an appropriate marketing strategy. Hershey Co., however, thought differently, suing the small Colorado company for trademark infringement over four of the company’s candies; Ganja Joy, Hasheath, Hashees and Dabby Patty, which Hershey’s claims are too similar to Hershey’s Almond Joy, Heath, Reese’s peanut butter cups and York peppermint patty candies, respectively.

TinctureBelle’s alleged packaging appropriation is not surprising, as many people tend to view trademarks as applying only to names, logos or symbols. However, Trademarks, however, also encompass non-traditional characteristics, such as shapes, sounds, smells, tastes and textures. While it is true that these non-traditional types of trademarks are the most difficult when applying for Federal registration, unregistered trademarks still receive a good amount of statutory and common-law protection.

Trademark law, specifically through the Lanham Act, ensures that consumers are not confused as to the makers of similar products or services due to similarities in their branding. Also, the Lanham Act prohibits false designation of origin, false or misleading descriptions or representations and false advertising.

TinctureBelle’s alleged packaging appropriation is not surprising, as many people tend to view trademarks as applying only to names, logos or symbols.

Given the potential for problems down the road, it is critical for new businesses or businesses with new product lines, to have an Intellectual Property attorney review their strategic and marketing plans to understand the potential risks. It doesn’t make any sense for a business to move ahead without both protecting their own intellectual property and getting clearance in their use. Imagine implementing a marketing plan, creating package designs, developing a website, buying domain names, hiring a public relations firm, and even purchasing business cards and stationary, only to receive as cease-and-desist letter fro the Trademark holder.

That may be what happened with TinctureBelle. Their product packaging looks so similar to Hershey’s product packaging, that Hershey’s sued them on the belief that consumers, including children, might think they are Hershey products. Based on the look of the packaging, and aggressive nature with which Hershey tends to defend its intellectual property, a good IP attorney probably would have advised against the package designs. Perhaps TinctureBelle was aware of the risks and still chose to move ahead; either way, they are now fighting a major corporation with lots of money and legal resources at their disposal.

Nevertheless, it is still up to Hershey to prove the trademark infringement. Courts look at several factors when deciding whether there might be a likelihood of confusion between two products or services. Known as the “Polaroid Factors,” they are derived from a 1961 Supreme Court case of Polaroid Corp. v. Polarad Elecs. Corp. Each of the factors weighs against each other; none being determinative, but some carrying more weight than others. The factors include:

  • Strength of the mark; the more distinctive the mark, the more likely there will be confusion.
  • Similarity of the marks, from the standard of a normal observer.
  • Similarity of the products or services. If the packaging held playing cards, there would be much less confusion than for candy products.
  • Likelihood that the mark’s owner will move into the infringing products market. TinctureBelle is a food product, so it is more likely Hershey would enter the pot-infusion market than automobile parts or some other non-food related product line.
  • Evidence of actual confusion. Proof of consumer confusion is not required, but it helps.
  • Sophistication of the buyers. The less sophisticated the purchaser, the more likely the confusion.
  • Quality of the infringing products or services. Lesser quality products cause the consumer more harm than if the product was better than the original.

There are numerous ways of proving or disproving the “Polaroid factors,” so TinctureBelle is not out of the game yet, although the fight will be a tough one. Hershey will likely ask the court to impose an injunction, which stops TinctureBelle from selling any of the four products pending the outcome of the case. Unless the outcome is almost assuredly in favor of Hershey, the court will be hesitant to impose such a damaging action before TinctureBelle has been able to present their defense. If they can get past that hurdle, TinctureBelle will have some breathing room. One thing that can be sure though, cases like this take a long time to play out.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

Add Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]