Hershey Co. Claims Brownie Baking Pan Infringes Its Product Configuration Trademark

Pennsylvania-based chocolate maker Hershey Co. has filed a Lanham Act lawsuit against Williams-Sonoma Inc., alleging that the kitchen product retailer is marketing and selling a baking pan that infringes Hershey’s “Chocolate Bar Design Mark,” a purportedly distinctive rectangle scored into 12 smaller rectangles. The Hershey Co. v. Williams-Sonoma, Inc., No. 10-1011 (M.D. Pa., filed May 12, 2010). According to the complaint, Hershey has been selling its chocolate bar for more than 100 years and registered its design in 1968. Hershey alleges that defendant’s unauthorized use of the design mark will cause confusion and that potential purchasers and consumers are likely to believe the infringing brownie pan is licensed by or affiliated with Hershey or its products.

As an example of that confusion, the complaint quotes alleged online consumer comments about the baking pans: “you can make your own little hershey’s miniatures”; “It’s like a Hershey’s bar with individual brownies”; and “Whether you’re a fan of Hershey’s chocolate bars or not, it’s [sic] design is undeniably a classic confectionery icon: a flat, rectangular bar divided up into bite-sized pieces that are easy to snap off.” The complaint also calls the infringement intentional, alleging that the defendant sells the pan in packaging that uses “a typeface that is extremely similar to the well-known ‘Hershey’s’ font.”

Hershey contends that that the defendant rejected its claims of infringement and refused to stop selling the baking pan. Alleging trademark infringement and related claims under federal law, common law trademark infringement and unfair competition, and trademark dilution under state law, the plaintiff seeks injunctive relief, an accounting of profits, compensatory and punitive damages, treble damages, costs, attorney’s fees, and the destruction of infringing products.