New Hershey’s Packaging Lawsuit is One Tough Cookie

A California cookie maker on Tuesday sued Hershey Co for the right to keep using a stylized chocolate chip teardrop on its packaging, after Hershey complained it looked too much like its famous Hershey’s Kisses, which average $450 million in sales per year.

The Cookie Department Inc. said Hershey’s threatened trademark lawsuit accusing it of borrowing Kisses’ “conical configuration” without permission was in retaliation for its own lawsuit accusing Hershey of infringing its “Tough Cookie” mark. The Cookie Department said the teardrop it has used since 2009 merely depicts the “universally known” shape of a chocolate chip, and called Hershey’s threatened lawsuit a “strategic ploy” to have it soften its stance in the Tough Cookie case.

It also called the Kisses marks “inherently weak” because the design and shape of Kisses are the same as those of chocolate and baking chips used worldwide since the 1940s.
So now, the Berkeley-based cookie maker is seeking an order from a San Francisco federal judge that it has not infringed Hershey’s intellectual property rights in Hershey’s Kisses. The Tough Cookie lawsuit concerns Hershey’s use of the phrase “Tough Cookies Only” on packaging for One protein bars. Cookie Department said a mediation is scheduled for Sept. 16, 2021.

When you can’t buy chocolate candy or cookies without running into a lawsuit, you know they’re everywhere. And when those not-so-sweet things negatively impact you and/or your business including bankruptcies, landlord/tenant matters including unlawful detainers, contract issues, nuisance ADA claims and even collections, call in your good guy business litigator, Dean Sperling to resolve YOUR matter with YOUR best interests in mind!  

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