Defiant Jacques Torres Fights Hershey Lawyers Over Kiss

For two years now, gourmet chocolate maker Jacque Torres has been selling a pink Champagne bon bon called the "Champagne Kiss." But the Hershey Corporation is worried that customers shopping for cheap, proletariat candy might get confused and buy his Kiss instead, which costs $1.50 each, instead of their waxy sugar pellets. So earlier this month their lawyers sent him a C&D, demanding he immediately retire his Champagne Kiss. But Torres won't pucker up! His lawyers have fired back, and in a letter obtained by Grub Street, they argue that the comparing the two products is analogous to "Chevrolet complaining that Rolls Royce is infringing on the Chevrolet trademark." Furthermore! "This is yet another example of a giant, monolithic corporation attempting to take advantage of 'the little guy,' in this case, a world-renowned artisan from France." An irate Torres tells Grub Street, "They don’t own the world! No way am I going to give up on [the kiss]—it’s completely unfair!" Oh merde, it is on!

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By John Del Signore in Food on April 23, 2009 11:27 AM

Comments [rss]

paulie

You asshole hipsters.

So now the rich-guy whose shop is located in DUMBO is complaining to a business based out of central Pennsylvania for pushing him around?

Hershey's done nothing wrong. Just because they don't sell chocolate that's not up to your asshole's standards, doesn't mean that you guys get to act like Hershey is on par with Citibank. Fucking douchebags.

Tamar Weinberg

JRod, this is not an isolated type of lawsuit nor does it surprise me. I was employed several years ago at a firm that did exactly this kind of trademark research that resulted in these kinds of lawsuits.

The bottom line is that a trademark is a trademark, and if the intent of the product use overlaps with another existing product of the same name, you're SOL whether there's confusion or not.

NannyState

Hershey can "Kiss" my ass.

Tamar Weinberg

Well, trademarks are trademarks. Hershey's does have numerous trademarks related to the word Kiss, but I'm not sure they actually own the "Kiss" trademark. I found "Kisses," though, and it's a trademark that has existed for 102 years (serial number 75183278), so I'm not sure Jacque can contest Hershey's claim. It'd save Jacque time and money to just change the name of his product.

With regards to trademarks, if the product is similar in nature/scope, you general *do* have a case against the person who is infringing on your trademark because it could be construed as the same item. Yes, while "no one in their right mind would ever confuse" the products *visually*, the bottom line is that the products are inherently the same -- that is, they're both candy -- and yes, legally, there's a case against this.

JRod5417

This case is a loser for the simple reason that Hershey's Kisses are sold in every retail outlet possible whereas Jacques Torres chocolates are sold only in his shops and website. There is no opportunity for a consumer of chocolate to be confused by the use of the word "kiss." If Hershey's can't prove consumer confusion, they lose.

Snoopy

So if they named it "kisssess" due to the double chocolate and the double flavor they would have no problem?

I wish I was a lawyer and didn't really give a fuck on how many people or the quality of life I can screw.

JMH

"they argue that the comparing the two products is analogous to "Chevrolet complaining that Rolls Royce is infringing on the Chevrolet trademark."

And if Rolls-Royce started selling a car called the "Chevrolet" then GM would have every right to sue them.

ed_Extinct

Does Hershey own the rights to the phrase: Hershey squirt? if not they better get to suin' someone, stat!

NYDirk

No, that's the minor league baseball team in Hershey, Pa.

pissyrabbit

except that "kiss" is a regular verb/noun not a proper name like "Chevrolet"

NannyState

Half of the San Fernando Valley should also be sued over their misappropriation of "hershey kiss" too...

marcal

Perugina makes a chocolate called baci, kiss, that's silver foil-wrapped. I wonder if that was that ever an issue (they're owned by Nestle which is definitely more of a Hershey competitor than JT).

JRod5417

I think its fair to say that no one in their right mind would ever confuse a Hershey's Kiss with Torres Champagne Kiss. Case closed.

wowthatsucks

Not an issue since it's named "Baci".

longacre

Me thinks Mssr. Torres is going to lose.

semarr

They're just mad because he lauded Forrest Mars as one of the chocolatiers he respects most.

http://www.seriouseats.com/2009/03/jacques-torres-m-and-ms-and-snickers-bars-rule.html

Politburo

Trademark law is inherently unfair to newcomers. It also requires that companies pursue all trademark infringements or risk losing the mark, and that is responsible for all these silly games.

Snoopy

Those aren't real "kisses" where is the aluminum foil wrapper? I've been robbed!

Plus they aren't shaped like the real Hershey "kisses" at all. The real"kisses" are shaped kind of like deer shit that has fallen on a hot sidewalk and then wrapped in it's famous aluminum foil package with a "Tampax" string opener.

Case dismissed.