Via Marty Schwimmer’s Trademark Blog:
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 every 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. It’s a little bit like the Hellmans’ Mayonnaise “official mayonnaise colors” problem, too…
Well, that’s a digression. But, you know — Reese’s, cursive, orange, brown, disk shapes — I’d sign that complaint for money.