IP Rights Again Brandished to Silence Critics

Originally posted 2005-12-20 21:51:46. Republished by Blog Post Promoter

Hershey Book

The Associated Press reports:

The distinctive chocolate bar on the dust jacket of a new book about the founder of The Hershey Co. violates its trademark, the candy maker said in a federal lawsuit.

The company wants an injunction to prevent publisher Simon & Schuster Inc. from using Hershey-owned images to market “Hershey: Milton S. Hershey’s Extraordinary Life of Wealth, Empire and Utopian Dreams,” which is coming out next month.

Hershey spokeswoman Stephanie Moritz said the company is concerned that consumers may think it “authorized, sponsored or approved” the book. The jacket also depicts a Hershey’s Kiss and a subtitle in a font similar to the paper wrapper inside a Kiss.

Simon & Schuster said the Hershey symbols on the cover are “artistically relevant” to the book’s subject and not expressly misleading.

“This seems to me to be a backdoor way to try to stop publication by claiming trademark issues, when really they don’t like what the book says. I consider it an attempt at censorship,” said author Michael D’Antonio.

The publisher is advertising the book as Hershey’s first major biography, the story of “a gambler, raconteur, despot and servant.”

They never learn. Hershey will lose this suit. No one is going to think the book is a giant cardboard chocolate bar. This is one of those great trademark / copyright / free speech / fair use intersection moments — especially in a case where there’s actual criticism of the subject of the trademark (meaning there could even be a semblance of a parody defense here). Let’s hope the courts don’t drop the ball this time.

UPDATE: Oh, I almost forgot: Buy it here.

UPDATE: Settled. Believe me, a settlement is a loss for Hershey, because according to press reports, the main concession by the publisher was the addition of a disclaimer — which never works as a defense. “Author Michael D’Antonio called the settlement ‘a victory for people who can’t tell the difference between recycled paper and chocolate’ and praised Simon & Schuster for fighting the lawsuit.” I prefer Nestle’s myself but I do think “recycled paper” is pushing it.

By Ron Coleman

I write this blog.

3 thoughts on “IP Rights Again Brandished to Silence Critics”
  1. […] But the facts here don’t seem to bear the use to which Hershey — which tends to be litigious, and heavy-handed — is putting the law. More from the Indianapolis Star: Hershey claimed X-it! made a derogatory parody of Hershey’s famous slogan for its Almond Joy candy bar: “Sometimes you feel like a nut! Sometimes you don’t!” Hershey was issued a registered trademark for those words in 1990. In the suit, Hershey says X-it! changed the word “nut” to a derogatory term used to describe a sexually promiscuous person, and sold that saying for use on T-shirts. Do they mean “slut”? Boy, that is some family newspaper — bless the Midwest! But this is not a crime. This sounds like a trademark infringement by a company that, like so many others, does not understand the difference between parody and satire. But criminalization of this would surely be unconstitutional, as would, I think, application of a civil law premised on criminality. Why would Hershey’s lawyers want to make such a mess of what could be, in other contexts, a very useful remedy? […]

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