The Hershey Company and Hershey Chocolate & Confectionery LLC filed suit Tuesday in the Middle District of Pennsylvania against The Cookie Department, Inc. In the complaint, Hershey alleges that The Cookie Department “has used the KISSES conical configuration in its logo, packaging, and marketing of its cookie products, and has acted in bad faith in appropriating Hershey’s goodwill and/or in diluting the value of the KISSES Marks.”
Hershey is a global leader in manufacturing goods such as chocolate, confectionery, and other snack food products. Since the company has had a “longstanding presence” in its market, they argued that they have established rights over their products since they have engaged in the long term, continuous, exclusive use of certain marks. One of these marks is the KISSESS Mark, a feature that includes a conical shape with an upwardly pointing tip.
The shape of KISSES is “the subject of numerous trademark registrations with the United States Patent and Trademark office,” the complaint said. In addition to using the shape on products, Hershey said they use the KISSES conical configuration on logos, the company website, social media, and packaging. The plaintiffs assert that their efforts to promote their product over the last 100 years, which they have expended significant time and money on, has resulted in KISSES Marks acquiring “distinctiveness, signifying Hershey’s fame and respected reputation through the United States and abroad.”
The complaint explained that the Cookie Department, founded in 2009, uses a stylized image of cookies on a baking sheet in their logo, which the plaintiff argues is remarkably similar to their logo. Hershey further explains that The Cookie Department “never filed an application for its logo” that includes the aforementioned conical shaped decorations. They believe that the infringing use of the conical logo is an attempt by The Cookie Department to cause confusion among consumers with KISSES Marks.
The complaint charges The Cookie Department with trademark dilution, trademark infringement, common law trademark infringement and common law unfair competition. Hershey is seeking injunctive relief prohibiting the defendant from further misconduct, a declaration of the violations, punitive damages, and other relief deemed proper by the Court.
The plaintiffs are represented by McNees, Wallace & Nurick.
