DISQUS

lseltzer · 9 months ago

Are you kidding me? Doesn't there need to be some remote possibility that people could be confused between the two companies?

esqmarty · 9 months ago

For the infringement claim yes, the standard is liklihood of confusion, but
for the dilution claim, the standard is likelihood of dilution, 'impairing
the distinctiveness of the mark.'

lseltzer · 9 months ago

Not a lawyer here, just curious: Assume (I can't tell from the web site either way) that the landscaper really is named Reese. The similarities are that both use script and the colors are suggestively similar. In fact the script letters are pretty different.

Does that meet the standard? I imagine there's tons of case law on this.

Meg Langley Grainger · 9 months ago

I think these two are not close - either in appearance, or in wares and services associated with the respective marks. What Hershey appears to be trying to do is to enforce a monopoly over the word REESE'S in combination with any orange/brown colour combination, which I think is broader than the monopoly to which they are entitled.

I will keep watching this with interest. Given Hershey's financial resources, it will likely settle out on favourable terms.

Ron Coleman · 9 months ago

I'm leaning plaintiff-wise on this one, for the dilution claim. There's simply no reason the landscaper has to use a style and color combination that is so obviously allusive to the famous trademark for peanut butter cups and, I guess, "pieces" too.

esqmarty · 9 months ago

I'm not sure what you mean by style and color combination. The landscaper
is using a conventional form of cursive lettering. The color combination of
the letters for Hershey are yellow letters outlined by chocolate brown,
while the landscaper's letters are an off-white gradient outlined by a
lighter brown (which would be a natural choice for a nursery that grows
trees).

Bob Jindle · 9 months ago

I'm leaning in Ron Coleman's direction (i.e, far rightward). The round sign looks like a peanut butter cup, and immediately brings to mind the Reese's product. Is there any doubt that this is an attempt to trade off Reese's recognition and goodwill?

Ron Coleman · 9 months ago

Marty, you got peanut butter in my chocolate! You're considering the respective design and layout choices in isolation, seriatim, rather than looking at the whole and acknowledging, hey, peanut butter cups!

Having said that: I acknowledge that this is a borderline case. It may very well be properly described as allusive of the TM in question... but I've argued on some blog or another that I don't endorse the idea that ever allusion to a cultural icon is a trademark infringement, or even a dilution.

But if you buy into the philosophy of dilution at all, and hey, it's the law, this may meet the new and devolved "likelihood of dilution" test. I just can't conceive what could be motivating this defendant to litigate.

Frankly Reese's has a bit of problem in that it has probably established such a strong "look" in the peanut butter category that peanut-butter based convenience food products are routinely sold utilizing the not-all-that-intuitive orange color in one way or another (see http://www.drugstore.com/qxp40823_333181_sespid...).

It's a little bit like the Hellmans' Mayonnaise "official mayonnaise colors" problem, too... but I don't remember where I saw that....

Well, that's a digression. But, you know -- Reese's, cursive, orange, brown, disk shapes -- I'd sign that complaint for money.

esqmarty · 9 months ago

Maybe Hershey's should have retained you to draft the complaint, as you
could make the chocolate circle argument, however the complaint itself
defines the trade dress merely as the logo, and the registration cited is a
rectangular label, as is the depiction of the trade dress. I acknowledge
that Hershey's may get somewhere arguing that REESE'S on a circle may evoke
a peanut butter cup (were it not for the tree and the words NURSERY and
LANSCAPING)/

Ron Coleman · 9 months ago

Well of course Hershey's should have retained me. Except they know that, notwithstanding my little exposition here, from a TM point of view I hates 'em. As you also know.

Cheryl · 8 months ago

If his name was Joey and the sign said Joey's nursery would this even be an issue? Maybe the company should sew his parents because they named him "Reese"... Does Hershey have nothing better to do than bother a mom and pop small town nursery?? I could see if it was a national chain like home depot or something, but we are here in the tiny town of Ranson WV. Maybe if he was giving out a free candy bar with every purchase it would make sense... or selling Chocolate scented plants... I think its sad that Hershey would go after a hard working individual who takes pride in his work. What on earth do they want to do, take everything a man has honestly made and put him out on the streets. If that is the type of company Hershey is maybe we need to think twice before buying a Reese's candy bar...

Bob Adams · 7 months ago

What needs to happen is for a really good PR firm, the pit bull-type who devour the young, to properly and publicly kick-in the teeth of this arrogant company. This is the kind of stuff that the media (especially television) loves to sink their teeth into, and one that consumers despise as typical of corporate America (which, by the way, has an image problem these days).

A smart PR firm will push this out of the legal domain and into the public, which will give Hershey something of a headache.

Can you picture this guy on GMA or the Today Show?

If I recall correctly, one of the morning shows recently did a piece on Hershey's switching from cocoa butter to vegetable oil for its chocolates, because it's cheaper. I bet they'd do a follow-up... My bottomline: Hershey is a bigger target than Reese Claybaugh. And you always shoot up, never shoot down...

keysfan · 5 months ago

I see two separate fonts. No simililarity!

I see orange and yellow on both logos, but I'm pretty sure Hershey does not have the two colors protected under trademark law.

Hershey uses vivid yellow font with brown outline. Landscaper is using graduated screened yellow with burnt orange outline. No simililarity!

I see yellow and orange in Landscaper's sunset graphic, but, again, I'm pretty sure Hershey does not have the two colors protected under trademark law.

Pure case of corporate America trying to bully the little guy.

If this case makes it to the public eye, Hershey's will suffer in public opinion. And, I might add, they'll deserve it!

Good luck, Landscaper.

mconover · 5 months ago

I just have to shake my head at the arrogance and audacity of a large corporation like Hershey to attempt to damage the good name (Reese's Nursery and Landscaping) of a reputable, hard working small business in the little town of Ranson, WV. I have studied their claim and, being admittedly naive in legalities, my untrained eye was surprised after reading their claim at the "unsimilarity" of the script! I thought it would surely be very similar based on what they said . . NOT! And questioning some of the same(?) colloring . . why would a landscaping company use the colors of the sunset to surround a tree (orange/yellow) . . makes sense to me! If Reese had a different name, this would not be an issue; however, Reese is one that was handed down to him and one he is proud of. I would love the media to get ahold of this one!! Talk about big business trying to get the little guy!!