Question

Hershey’s v. Tincturbelle LLC

A company in Colorado recently began producing marijuana-based edible products for sale in the state. The company, Tincturebelle LLC, packaged its products in wrappers that are intentionally similar to certain well-known packages for candy made by Hershey, Inc. One product is called “Hashees” and has a packaging that is similar in color and graphics to Hershey’s product “Reese’s.” Another is called “Ganja Joy” and has packaging that is similar to Hershey’s product, “Almond Joy.”

Discuss whether Hershey’s can prevail on either a trademark infringement or dilution claim.

Answer 1

Dilution under tarnishment

“Tarnishment” happens when the famous mark’s reputation is harmed through association with a similar mark or trade name. This generally applies when a defendant’s use of the mark is considered unsavory, or is connected to inferior products or services.

Under the Dilution Act, only famous marks are protected against dilution. The factors to be considered in determining whether a mark at issue is famous are the duration and use of mark, the duration and extent of advertising for the mark, the geographic area in which the mark has been used, the degree of recognition of the mark, the method by which the product was distributed and marketed, the use of the mark by third parties, and whether the mark was federally registered.

Hershey's can prevail on dilution claim.

Cite: Frank Issac Schechter Article on trademark law