Candy Candy Candy!

If you’re a candy fan, there’s probably lots of candy brands you can identify just by looking at the candy itself. In other words, a chocolate bar or a piece of candy can be a trademark.

Ritter Sport® has been using this shape for its chocolate bars since the 1930s. It’s been fighting to keep the exclusive rights to the shape in its home in Germany but, so far, its registration in the U.S. is holding steady.

Hershey’s® has been using this shape for its chocolate bars since 1968 but . . .

. . . the even more famous shape of a Hershey’s Kiss® dates back to 1907 and has been registered since 1924.

In 2006, Nestlé® tried to register a trademark for the shape and look of these candies. The U.S. Trademark Office refused Nestlé’s application because the proposed mark was confusing similar to Hershey’s registered trademark. Duh.

James’® and Fralingers® have been battling over the rights to claims about originality of salt water taffy and its shape for over a century. Fralingers started calling itself the “original” salt water taffy in 1894. James’ couldn’t call itself the “original” so it started using CUT TO FIT THE MOUTH to describe the shape of its taffy in 1910.

And, of course, Just Born® has been using this shape for its Peeps® since 1958.

Can you think of any other candy or food product with this kind of trademark?

Shout out to Rebecca W. for the suggestion that led to this blog post.

Cease and Desist

There’s nothing good about getting a letter demanding that you stop infringing on someone else’s trademark. Threats of litigation loom. Thoughts of lost time and money dominate.


It’s bad, but it may not be as bad as it seems.

Houston, we have a problem.

If you really are infringing on the rights of another trademark owner, you’re going to have to rebrand. That’s pretty awful news but you can usually negotiate for a period of time to make the transition from your current trademark to the new trademark. It’s going to cost you money and lost good will, but there are ways to mitigate that.

Just a skosh.

Sometimes you can make your trademark non-infringing without having to completely rebrand. The other owner may agree to allow you to continue using parts of your trademark or to change just your logo or font.

So’s your mom

Sometimes the cease and desist letter is flat out wrong. The letter writer doesn’t know all the facts or screws up the legal analysis. Lots of lawyers don’t know that much about trademark law but that doesn’t stop them from shooting off nastygrams. They’re counting on your being so scared that you agree to whatever they ask. If that happens, you need to convince them to leave you alone by setting out the true facts and making the correct legal analysis.

None of these are as good as never getting a cease and desist letter but all are way better than a lawsuit.