The Internet of Things: A threat to yummy trademarks?
This item came across the ether yesterday:
— Likelihood TM Blog (@likely2confuse) January 29, 2015
Adorable. Delicious. Here’s what it is:
Someday in the future, that is. . . .
“We don’t have the final objective in our minds. We’re working toward that,” Mr. Mundt said. “The beauty of 3-D printing is that you can make something with this that you could never get out of a mold. [We can] use the technology to create something maybe no one has ever thought of or ever experienced.”
So, just explain me this: When I’m running my own Hershey’s factory in my home office under who-knows-what quality-control standards, knocking out intensely branded “Hershey’s” candies and handing them out to my high-level colleagues and clients, what does that mean for the Hershey’s trademark? Quality control, after all, is the linchpin of secondary meaning — the rich, chocolatey center of trademark rights.
This is not the first time this question has been asked. In 2008 I riffed on a post by Eric Johnson about what he described as “a Hershey’s-brand three-compartment silicone muffin pan” which turned out muffins in this pan “in the shape of oversized Hershey’s chocolate bars – complete with the Hershey’s name and logo intaglioed in the shape of the finished muffin.” As Eric wrote:
Clearly, if you buy this muffin pan, there is an implied license to use it to make muffins with the Hershey’s logo. That is, there is an implied trademark license. But, as you might expect, Hershey’s exercises no control over the muffins you make with their logo in the pan you purchased.
Thus, this looks like a case of “naked licensing” – a fast way for a trademark owner to be involuntarily stripped of trademark rights.
Maybe. To my knowledge, the interesting, though largely academic question of whether Hershey’s abandoned its trademark rights via naked muffin licensing was never tested in the courts. But is the 3-D printing thing the same, but worse? Or is it better, perhaps, because of the degree of precision available to a digital “baking” process, compared to Mom’s loving, but admittedly less-than-scientific, kitchen?
The AdAge article does hint at this point:
A consistent taste is key for the Hershey brand. In this case, that means the 3-D recipes — chocolate is extruded through special metal-nozzled cartridges — must have the same taste as the bars they’re mimicking. Hershey already has wings in its headquarters dedicated to the work of food scientists and sensory experts who make sure flavor profiles, consistency and texture are on brand for all of its products. Three-D chocolate is just another addition to the quality-control team’s mandate.
For now, 3-D printing at Hershey means consumers can commission a custom, edible wedding cake topper or greeting card. But the future could bring other uses. While Hershey execs wouldn’t commit to specifics, they agreed that distributed manufacturing with the ability for mass-scale 3-D printing in areas without Hershey manufacturing facilities, as well as non-chocolate 3-D food printing, are considerations for the company.
In other words, as intriguing as the headline sounds, Hershey’s isn’t about to let anyone start banging out Hershey-branded products on home computers — as if the cost of mere ink toner weren’t already high enough. This is merely about cheaper ways for Hershey’s to do remote and customized manufacturing, which is, yeah, kind of interesting, but probably not what most people reading the item or even retweeting it think it means. Indeed; back to AdAge:
It’s also a marketing play. The exhibit at Chocolate World will draw curious visitors and customization enthusiasts as well as media attention. The company’s 3-D chocolate was on “Good Morning America” after the team printed chocolate bars with images of the show’s hosts for a segment in late December.
“We’ve found at Chocolate World that when consumers can engage with chocolate in ways other than going to the grocery store, getting a bar and eating it, it means more to them. There are other ways they can engage now,” Mr. Mundt said.
Right. In other words, fellow RT’ers… we’ve been played.
Depressed? You know what’ll make you feel better.