My first thought was, 'We are big enough that Hershey noticed us?'
I mean, come on, it's not like I was trying
to impinge on a trademark, or anything. Doesn't everyone recognize a large, tear-drop shape chocolate chip as a Kiss these days? Hasn't it entered the vernacular?
According to Hershey, it has not.
So, some intern (I'm assuming it was an intern, and not a high-priced attorney) was scouring the Internet for merchandise with the word 'kiss' in the title, and our little beeswax candles popped up. Mind you, we discontinued the candle a few years back, melted down the remainders last year, and simply overlooked it on the website since the candle section is horribly outdated. We never even wrapped it in foil or anything, it looked like a yellow candle. But this intern did not know and/or did not care, so we received a 'cease and desist' letter.
The nitty gritty is that we aren't fighting Hershey on this. The candle had already been discontinued, we never had an intention of violating a trademark, and Hershey is willing to settle this without lawyers. They essentially want them removed from the website and a promise not to do it again, and we are quite willing to accomodate that.
But, I found some of the language in the letter amusing, so I decided to share a bit with you. (Trust me, there is very little amusing about the threat of being sued by a huge corporation like Hershey, but some of the language in the letter is amusing, given the size of our family business and the lack of popularity of the candles.)
(excerpts from letter, all emphasis mine)
It has recently come to our attention that through your website, http://www.beefolks.com/
, you are distributing products which incorporate the KISSES Trademark and Trade Dress. Specifically, you are selling conically shaped "Small Kiss Beeswax Candles" and "Twisted Kiss Beeswax Candles" that are nearly identical in appearance and confusingly similar
to our client's famous KISSES brand chocolate.....
Use of the KISSES Trademark and Trade Dress by persons or entities not affiliated with Hershey can result in a liklihood of confusion for consumers
and can dilute the value of and/or tarnish our client's rights. Therefore, your use of the term "Kiss" in connection with the conical shape of these particular candles constitutes an illegal infringement and dilution of our client's valuable intellectual property rights. Even if the public is not confused as to the source of the Infringing Merchandise, your use of the KISSES Trademark and Trade Dress in this manner undoubtedly will tarnish and dilute these assets
Our client has several options to enforce its legal rights.....However, at this time, our client wishes to resolve this matter amicably without resorting to litigation.
So, Milton, if you are reading this, please know that the candles have been removed from our website, and your apology is in the mail. Please let me know if I may be of more assistance.
Labels: cease and desist, hershey, hersheys kiss