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Sat, 18 Dec 2021
Hershey Goes On A Threat Blitz Against A Bunch Of Independent Breweries
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As far as Techdirt's pages go, Hershey, the company behind all kinds of candy and sweets brands, doesn't come out of the wash clean. The company has been known to lean on IP laws quite aggressively, even absurdly. For instance, it sued a furniture company for having vehicle wraps that looked like a couch being unwrapped like a chocolate bar. Pretty dumb. It also sued Mars for having its own peanut butter chocolate candy, but for which the trade dress was totally different compared with Hershey's Reese's property. Also dumb.And now the dumb continues as Hershey is apparently going on a threat blitz against several independent beer breweries for trademark infringement. While some of the disputes make some sense from Hershey's perspective, some do not and the overall behavior of the company is one of the bully. We'll start with some of the problematic threats.Over the past year, the world’s fifth largest chocolate confectioner has sent cease and desist letters to at least eight breweries across the country accusing them of infringing on its trademarks and requesting compensation up to $20,000.In one case, Hershey is demanding that the owners of Parliament Brewing in Sonoma County, California, stop calling a beer a common catch-phrase that happens to share a name with one of its candy bars. “We named a beer Whatchamacallit because we had a plumber we loved who was kind of hokey. He would refer to everything as a ‘whatchamacallit.’ I’d never heard the term before,” says co-owner Justin Bosch, who brewed the Whatchamacallit imperial IPA twice, once when Parliament opened in 2019 and again in 2020. You may be wondering: where is this coming from, given that Hershey doesn't make beer and these seem to be different market categories? Well, the answer to that is likely because Hershey entered into a licensing agreement with Yuengling for its "Hershey's Chocolate Porter". This, perhaps, has led Hershey to believe that it is now tangentially in the beer-making business.Except that's not really how that works. Combined with the generic nature of the brand name, "Whatchamacallit", there is no public confusion here to worry about. Beer is not candy, in other words, so these two products are in fact playing in different markets, which means in most cases there is no valid trademark complaint to be made.But because trademark bullying by huge companies works, nearly all of the breweries in question have agreed to change their branding, including Parliament Brewing. That, it appears, wasn't enough for Hershey. The company wants its $20k no matter what.“I don’t agree there’s an issue here but in the interest of making everybody happy I’ll stop,” he says, paraphrasing his response. “And they came back with, ‘Give us $20,000.’”More precisely, even though they made no initial mention of money and expressed a wish to “resolve this matter quickly and amicably,” they came back with a letter from their law firm that stated relief could only come from paying a steep price. It read, “While we appreciate your willingness to cooperate and to cease infringing our client’s intellectual property rights, be advised that entering a formal agreement with Hershey will be necessary to resolve your past unauthorized use of the WHATCHAMACALLIT® trademark and to confirm your understanding going forward.” I would think the lesson here is that perhaps the math on whether to fight spurious trademark threats from Hershey wasn't so cut and dry. If you're going to have to shell out $20k anyway, well, maybe it would have been better to find a lawyer and fight. After all, again, in nearly all of these cases there is little reason to think the public is actually going to be confused over any of this.Or, as Bosch, who produces a mere 500 barrels (15,500 gallons) of beer per year, says, “Nobody’s going to mistake a double IPA for a candy bar.” Depends on how many double IPAs they've already had, I suppose, but it's "moron in a hurry" not "moron who is drunk."
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posted at: 12:00am on 18-Dec-2021
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