Hershey Sues Edible Company Over Look-a-like Candies

Hershey Chocolates has filed a federal trademark infringement lawsuit against TinctureBelle LLC and TinctureBelle Marijuanka LLC, a Colorado company that makes marijuana-infused candy.

Hershey claims the packaging for the edibles too closely mimics its trademarked products. It also objects to TinctureBelle's online advertising. The complaint (Case No. 14-cv-01564-WYD, District of Colorado) includes photos of the alleged infringing products. [More...]

Here are some photos from the Complaint:

Hershey says:

The defendants are not merely causing a likelihood of consumer confusion with Hershey’s marks and products, and diluting and tarnishing Hershey’s marks by creating an association in consumers’ minds with products containing cannabis and/or tetrahydrocannabinol. Defendants’ unauthorized conduct also creates a genuine safety risk with regard to consumers, including children, who may not distinguish between Hershey’s candy products and defendants’ cannabis- and/or tetrahydrocannabinol-based products, and may inadvertently ingest defendants’ products thinking that they are ordinary chocolate candy.

The lawsuit alleges violations of the Lanham Act, 15 U.S.C. §§ 1051 et seq., and state law. It wants a restraining order and for TinctureBelle to recall all of its "goods, product packaging, product displays, promotional materials, advertisements, commercials, infomercials", and to deliver the infringing products, displays, and ads for destruction. It also wants TinctureBelle to turn over any domain name that deceptively mimics Hershey and disable all websites depicting the infringing products. It wants TinctureBelle to notify all distributors of the allegedly infringing candies that the candies are a trademark infringement. Hershey also wants TinctureBelle to pay for an advertising campaign by Hershey to inform the public about the infringement of its products and reverse the damage the candies have done to its image.

As for money, Hershey's wants all of TinctureBelle's profits made on the infringing candies, as well as actual damages, statutory damages, compensatory damages, punitive damages, treble damages, and attorneys' fees and costs.

Personally, except for perhaps the Heath bar and Reese's, I don't think the products look that much Hershey's products. The "risk to children" issue seems like a red herring. Kids can't buy the products, intentionally or by mistake, since the law prohibits sales to juveniles. If parents buy the candies, it's their responsibility, not that of the edible company, to keep their kids from accessing them, just as it's the responsibility of parents to keep prescription medication and dangerous weapons out of their kids' hands.

TinctureBelle's website is currently down. I'm not sure if that's from the increased traffic caused by news of the lawsuit, or whether TinctureBelle voluntarily took down the site. It doesn't appear a restraining order has been granted yet.

Interestingly, Hershey is not asking for a jury trial. Maybe it doesn't think its position will garner much sympathy here in Colorado.

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    The simple solution (5.00 / 1) (#1)
    by CaptHowdy on Sat Jun 07, 2014 at 07:02:37 PM EST
    Well I guess there might be two.  Hershey could bring out their own line of THC goodies or buy the pot company.

    I think the labels are changed enough (5.00 / 3) (#2)
    by nycstray on Sat Jun 07, 2014 at 07:25:13 PM EST
    The hashees 'might' be the only one, but they did things like not capitalize it etc, plus, it's basically on a silver background. The Heath bar style is a very common graphics style. The packaging it's self sets it apart from Hershey bars and patties.

    Makes you wonder about all the generic brands out there who's packaging is a more direct copy of who they are knocking off.

    That's true (none / 0) (#6)
    by Ga6thDem on Sat Jun 07, 2014 at 08:02:32 PM EST
    A lot of the generics look an awful lot like the real thing.

    They need little mini Hashees cups (none / 0) (#10)
    by Militarytracy on Sat Jun 07, 2014 at 09:37:45 PM EST
    Wrapped in gold foil.  And they need to sell Reese's cups next to them.

    I might want to relax a little when I'm PMSing, but I'm not putting the peanut butter cups down until I've eaten two full size peanut butter cups.  That's the cure :)


    This is (5.00 / 2) (#28)
    by scribe on Sun Jun 08, 2014 at 06:15:17 PM EST

    This is a particular weakness.

    I had what might have been a "better" solution - a friendly neighbor who worked for a well-known chocolate company who'd bring home "samples" with the instruction to "let me know what you think".


    Dark chocolate Reese's and a (5.00 / 1) (#31)
    by Militarytracy on Sun Jun 08, 2014 at 06:42:24 PM EST
    Glass of red wine in the midst of a baaaaad PMS!

    These things (none / 0) (#11)
    by CaptHowdy on Sat Jun 07, 2014 at 10:04:05 PM EST
    Ferrero Rocher

    The not thing that could make these better is THC


    "Candy Warehouse" - lol (5.00 / 1) (#16)
    by Mr Natural on Sun Jun 08, 2014 at 10:25:38 AM EST
    I had to ban them from my Christmas stocking (none / 0) (#19)
    by Militarytracy on Sun Jun 08, 2014 at 12:10:00 PM EST
    I don't really care for sweets....but chocolate done well..ahhhh

    The ONLY thing (none / 0) (#12)
    by CaptHowdy on Sat Jun 07, 2014 at 10:04:48 PM EST
    Tarnish (5.00 / 1) (#4)
    by squeaky on Sat Jun 07, 2014 at 07:49:19 PM EST
    diluting and tarnishing Hershey's marks by creating an association in consumers' minds with products containing cannabis and/or tetrahydrocannabinol.

    How long before Hershey gets into the MJ biz?

    2 years?

    There was a place in LA... (none / 0) (#3)
    by Dadler on Sat Jun 07, 2014 at 07:35:50 PM EST
    ...where they'd just take the real candy bars, dip them in cannabis chocolate, then past the real label on the new package.

    My defense would be (5.00 / 1) (#7)
    by CaptHowdy on Sat Jun 07, 2014 at 08:12:43 PM EST
    It's not an imitation it's an homage

    If I were in the edible pot biz... (none / 0) (#5)
    by unitron on Sat Jun 07, 2014 at 07:49:49 PM EST
    ...I'd want my own "not similar to anyone else's anything" name and packaging so as to build my own brand, but that's harder to do than "satirize" someone else's.

    Sooner or later some idiot's going to leave one of these where a kid can get to it, and then someone's going to decide to sue Hershey over it because they've got pockets nearly infinitely deeper than the actual manufacturer, and Hershey will have to spend money fighting it even though they've done nothing wrong.

    These prob existed pre-legal (none / 0) (#9)
    by nycstray on Sat Jun 07, 2014 at 09:17:38 PM EST
    and if you really look at the packaging, you can see a distinct difference in how a candy bar is packaged vs these. These seem to be in foil packs with a label.

    Ya know, the package could have a big MJ leaf on it and say Pot Brownie!!! in huge type and a little kid could still pick it up and eat it. So could the family dog.

    I agree on the branding (plus I wouldn't want to be associated with Hershey in any form :P)


    I visited the factory (none / 0) (#13)
    by CaptHowdy on Sat Jun 07, 2014 at 10:07:05 PM EST
    In Hershey PENN once very stoned.  All I remember is the smell

    That's a dangerous thing to do (5.00 / 1) (#29)
    by scribe on Sun Jun 08, 2014 at 06:16:33 PM EST
    They sell 5 lb versions of Hershey bars there.

    Yes (none / 0) (#35)
    by CaptHowdy on Sun Jun 08, 2014 at 07:24:22 PM EST
    Think none of us wanted chocolate for a while after that day.

    And I can't see 'Hershey' anymore without (none / 0) (#14)
    by ruffian on Sun Jun 08, 2014 at 05:21:46 AM EST
    Amazing (none / 0) (#15)
    by CaptHowdy on Sun Jun 08, 2014 at 09:34:35 AM EST
    Was either story true?   Does it matter?

    2nd one true. Yes it does matter! (none / 0) (#20)
    by ruffian on Sun Jun 08, 2014 at 04:33:57 PM EST
    That clips cuts it off, but he ends it with...and here is where I try to tie it back to this thread so I am not OT...

    Hershey's is so iconic that it needs no advertising. It should not need brand protection either, right? No one should mistake Hershey's for a company that would sell THC candy. But I imagine the law firm that tried to make that pitch got fired just like Don Draper did.


    I had no idea that (none / 0) (#24)
    by CaptHowdy on Sun Jun 08, 2014 at 05:33:22 PM EST
    Was his story background.  That would make a difference.  

    You need to binge MM!!! (none / 0) (#43)
    by ruffian on Sun Jun 08, 2014 at 09:11:56 PM EST
    I really do (none / 0) (#44)
    by CaptHowdy on Sun Jun 08, 2014 at 09:15:31 PM EST
    Always nice to have something to look forward to

    Did you see GOT?  Not your favorite episode I'm thinking.  But interesting previews for th finale.  Dragon head.  Are they going to save the day after all?


    Will see you in the open thread.. (none / 0) (#47)
    by ruffian on Sun Jun 08, 2014 at 09:23:24 PM EST
    It's funny (none / 0) (#45)
    by CaptHowdy on Sun Jun 08, 2014 at 09:16:53 PM EST
    I read that I need to binge MMs.

    And I thought, ok I know this is a chocolate thread but why ...


    Could not resist a double entendre ;-) (none / 0) (#46)
    by ruffian on Sun Jun 08, 2014 at 09:22:29 PM EST
    Iconic brands got that way because of (none / 0) (#25)
    by ZtoA on Sun Jun 08, 2014 at 05:36:28 PM EST
    advertising and many guard their brand looks jealously. Try messing with Disney. They have a right to their brand looks. If pot candies got their own brand look it would be iconic too in several years. Let's see...."Whoa Yum" "Sweet Stoned" "Hungry Yet?" "Rocky Mountain HIgh" "Special Candy". I'll never be Don Draper tho "Whoa Yum" kinda appeals to me. Bright red, white and blue packaging, block letters, maybe a Thomas Kinkade pic in the corner.  

    "Sweet Jesus" (none / 0) (#26)
    by ZtoA on Sun Jun 08, 2014 at 05:45:03 PM EST
    might get them in a bit of trouble. "Sweet Dreams" Sweet Highs" - or they could go for "Colorado Candies" .

    I hope Kinkade was a joke (none / 0) (#27)
    by CaptHowdy on Sun Jun 08, 2014 at 05:53:26 PM EST
    Not A Fan? (none / 0) (#30)
    by squeaky on Sun Jun 08, 2014 at 06:18:45 PM EST
    He was a genius, imo...  I have great respect for him as an artist.

    We have discussed this (none / 0) (#32)
    by CaptHowdy on Sun Jun 08, 2014 at 06:44:39 PM EST
    Agree with reservations.  My point was I don't really think potheads are going to buy something because he is on the cover.  Probably the opposite.

    Oh (none / 0) (#33)
    by squeaky on Sun Jun 08, 2014 at 06:59:24 PM EST
    I am sure that ZtoA meant a pic of one of Kinkade's paintings on the wrapper..

    Yeah I got that. (none / 0) (#34)
    by CaptHowdy on Sun Jun 08, 2014 at 07:13:35 PM EST
    I don't know of you know any potheads but that is pretty much all I know.  Not typically Kinkade fans.   More like Andrew Jones or Luke Brown not Kinkade

    Oh (5.00 / 1) (#38)
    by squeaky on Sun Jun 08, 2014 at 07:31:32 PM EST
    Stoner fantasy... repurposed..  christians don't own it, that was just a marketing scheme..

    It is perfect, sugar in sugar... a conceptual mis en abime..  and I think looking at Kinkade stoned is a plus..


    And you get stoned? (none / 0) (#40)
    by CaptHowdy on Sun Jun 08, 2014 at 07:36:32 PM EST
    hahahahahaha (none / 0) (#41)
    by squeaky on Sun Jun 08, 2014 at 08:27:23 PM EST
    I did not inhale.. hahahaha  

    It was a bit of a joke (none / 0) (#36)
    by ZtoA on Sun Jun 08, 2014 at 07:27:29 PM EST
    But it might expand Kinkade's influence, as in "have you ever really looked at this?" . Still, he does paint "happy places". Didn't Keeblers have leprechaun happy places? Or label the really strong candy in packaging that looks like Fox News and call it "Fu*ks Boos". Gads I have to stop this.

    Still, I think they are trying to look legit by tying their look like an established brand. They don't need to do that - they are already legit, as in legal. I say "Whoa Yum" with red white and blue packaging and maybe a yellow happy face.


    I actually don't thnk they are trying to (5.00 / 1) (#39)
    by CaptHowdy on Sun Jun 08, 2014 at 07:35:53 PM EST
    Look legit.  No one is fooled.  The wrappers are IMO a joke.  A spoof.  A callback to childhood with a kick.  They used those logos because we all grew up with them.  IMO it was entirely intentional and not meant to fool anyone.  I think it's genius.  And I, in fact, totally see why Hershey's is upset.  Doesn't mean I'm on their side.

    Well, if they are a joke (none / 0) (#42)
    by ZtoA on Sun Jun 08, 2014 at 09:10:26 PM EST
    then it is not a very funny one. Unless you're high then everything is pretty funny. I would think that these marketers would like to open up new markets, now that partaking is legal. A stoner joke may appeal to some, but those are already in an established market. When I go up to WA to buy one or two joints I want to walk out of that store with a red white and blue bag and feel proud. I want to carry something that makes a statement. Liquor packaging does not copy candy and it has some of the most beautiful labels and packaging out there.

    One does not have to be on Hershey's 'side' to see that this is too close to trademark and brand copying. That won't be too funny for these new businesses if they keep getting sued.


    Yes (none / 0) (#48)
    by squeaky on Sun Jun 08, 2014 at 09:37:00 PM EST
    I am sure Will Cotton would be happy to design wrappers... but maybe MJ is the wrong drug for his paintings..

    This Kinkade for a hash filled son-ball..  or for something fancier..


    Haha! Yes, Will Cotton (none / 0) (#50)
    by ZtoA on Sun Jun 08, 2014 at 10:11:22 PM EST
    a favorite of an artist friend of mine, Morgan Walker. (who's work is nothing like Cotton's tho)

    When LSD is legalized Cotton would be a perfect match.


    hmmmm (none / 0) (#52)
    by squeaky on Sun Jun 08, 2014 at 10:58:45 PM EST
    Not LSD... darker for sure..

    what did you have in mind? (none / 0) (#53)
    by ZtoA on Sun Jun 08, 2014 at 11:30:37 PM EST
    ayahuasca? I think LSD would be a good fit, but complete madness might work too.

    No (none / 0) (#54)
    by squeaky on Sun Jun 08, 2014 at 11:51:06 PM EST
    But nice to learn about a new hallucinogen....  I know too more than I want to.. so I feel I can only be oblique.  

    genius painter....maybe.... (none / 0) (#37)
    by ZtoA on Sun Jun 08, 2014 at 07:28:45 PM EST
    but he was not a good thinker.

    That Is For Sure (none / 0) (#49)
    by squeaky on Sun Jun 08, 2014 at 10:09:15 PM EST
    Probably not a good person either... more than probably.

    Not to get too OT (none / 0) (#51)
    by ZtoA on Sun Jun 08, 2014 at 10:13:41 PM EST
    but if Kinkade had said anything like you did then he would be a darling of the art world. He rejected that outright.

    I'd kill for a Hashees (none / 0) (#8)
    by Militarytracy on Sat Jun 07, 2014 at 08:33:19 PM EST
    Right now.  But if one cup has 100 mg...I'm going to have to find myself some green corduroys and some Chardonnay the next PMS.

    I agree that the labels don't look (none / 0) (#17)
    by ZtoA on Sun Jun 08, 2014 at 11:16:38 AM EST
    exactly the same. But for the sake of a budding bud industry I think edible marketers should develop distinctive styles of their own.

    Actually the labels (none / 0) (#18)
    by ZtoA on Sun Jun 08, 2014 at 11:20:24 AM EST
    are pretty close. The round format, the color, the use of a text banner that pushes up the letters in the middle of the word, the sizes, the names. Too too similar. Hey marketers, get your own styles, so that your products pop on the shelf.

    what about joe camel (none / 0) (#21)
    by thomas rogan on Sun Jun 08, 2014 at 05:14:28 PM EST
    The puritans are all over Joe Camel allegedly being used to market tobacco to children, banning ads etc.  Now "Kids can't buy the products, intentionally or by mistake, since the law prohibits sales to juveniles."  
    Is there any good reason to put edible THC in candy as opposed to in a piece of bread, except for marketing purposes?

    Tradition? (none / 0) (#22)
    by squeaky on Sun Jun 08, 2014 at 05:17:56 PM EST
    It tastes better? (none / 0) (#23)
    by CaptHowdy on Sun Jun 08, 2014 at 05:31:41 PM EST
    Not to me, (none / 0) (#56)
    by Zorba on Mon Jun 09, 2014 at 04:35:50 PM EST
    at least as far as Hershey's chocolate or any chocolate like it is concerned.
    Tastes like spoiled milk to me.  I'd rather eat a nice piece of bread (not, I hasten to add, any kind of squishy white bread).
    Now, if you want to add mj to a really good, European-style chocolate, then we are talking.    ;-)

    Ah, we disagree (none / 0) (#57)
    by jbindc on Tue Jun 10, 2014 at 07:26:36 AM EST
    Hershey's is the BEST chocolate for me.

    Forget that Euroean crap - give me a Hershey bar with Almonds.  Yum!


    Hershey's (5.00 / 3) (#60)
    by squeaky on Tue Jun 10, 2014 at 10:31:47 AM EST
    Hershey's may be the BEST, but NESTLES is the VERY BEST..

    Farfel the dog! (none / 0) (#63)
    by Zorba on Tue Jun 10, 2014 at 11:45:32 AM EST
    Who could forget those commercials?    ;-)

    I like the expensive stuff (none / 0) (#58)
    by CaptHowdy on Tue Jun 10, 2014 at 07:31:43 AM EST
    But if it's chocolate I will eat it.

    Also have a fondness for HwAlmonds


    Oh don't get me wrong (none / 0) (#59)
    by jbindc on Tue Jun 10, 2014 at 08:10:15 AM EST
    I'll eat most any chocolate.  I do actually like the European chocolate (and Dove and Ghiradelli.

    But they don't compare to Hershey's. :)


    I like Lindt (none / 0) (#61)
    by Militarytracy on Tue Jun 10, 2014 at 10:54:46 AM EST
    I do, too. (none / 0) (#62)
    by Zorba on Tue Jun 10, 2014 at 11:43:04 AM EST
    Also Guylian.

    Valrhona My Fave (none / 0) (#64)
    by squeaky on Tue Jun 10, 2014 at 11:48:07 AM EST
    And Sharfenberger the American European chocolate is tops, imo

    I like any chocolate that (none / 0) (#65)
    by ZtoA on Tue Jun 10, 2014 at 12:06:00 PM EST
    is completely unsweetened. Just a tiny bit of that bitter stuff on the tongue is a thrill.

    Yes. (none / 0) (#66)
    by Zorba on Tue Jun 10, 2014 at 12:06:49 PM EST
    They're excellent.
    I think we should all go to the 1st International Congress on Chocolate and Cocoa in Medicine, to be held in Florence, Italy this September.
    See, I always knew that chocolate is good for you.    ;-)

    Got any chocolate with chili recipes squeak? (none / 0) (#67)
    by Militarytracy on Wed Jun 11, 2014 at 09:36:44 AM EST
    I love that Lindt dark chocolate chili bar.  That is another PMS cure.  There was a restaurant in Old Colorado City that made jalapeño chocolate mousse too that had medicinal properties :)

    Mousse (5.00 / 2) (#68)
    by squeaky on Wed Jun 11, 2014 at 09:59:04 AM EST
    Well there is Heston Blumenthal's 5 minute chocolate mousse using water chocolate and ice...  just add some chili or jalepeno.. Here is the video

    I would use Valrhona or Sharffen Berger dark chocolate..

    and if you want to slum it try this..


    You can add some (5.00 / 1) (#69)
    by Zorba on Wed Jun 11, 2014 at 03:45:20 PM EST
    chopped or shaved unsweetened chocolate to your regular bean and meat chili recipe, too, Tracy.
    Also, try adding a bit of brewed coffee.

    It makes my coffee taste bitter (none / 0) (#73)
    by Militarytracy on Thu Jun 12, 2014 at 03:08:39 AM EST
    And I only use sugar very selectively.  I suppose you could say I reserve what sugar I can eat and remain healthy for wine consumption and a dessert now and then.

    Not sure that's rip the best link (5.00 / 1) (#71)
    by CaptHowdy on Wed Jun 11, 2014 at 04:22:02 PM EST
    One small bite of mole (pronounced MOE-lay) holds a big mouthful of flavours - sweet, bitter, fruity, earthy, and piquant. Moles are part of Mexican cuisine and are used traditionally to make stews with chicken, turkey, pork, or beef. Dark chocolate blends well with these savoury ingredients to bring out a rich, complex flavour.

    The word mole comes from molli, the Aztec word for sauce. Moles usually feature a variety of dried chilli peppers and an impressively long list of other ingredients that often, but not always, includes chocolate.

    A Brief History of Moles

    Chocolate was not part of any mole prior to the 17th Century. Many fanciful legends have sprung up about the origins of mole poblano, the traditional mole from the Mexican state of Puebla. The most likely story is that the nuns from the Santa Rosa convent near Puebla City, Puebla, collected mole recipes from the indigenous people, modified a mole recipe by adding cocoa, and served the tasty dish to a visiting dignitary.

    Mole poblano's popularity spread quickly, and it soon became a national dish. Mole poblano is served at Christmas and other holidays and on special occasions, such as weddings and birthdays. In the state of Puebla, turkey mole poblano is served at the annual celebration of the Battle of Puebla on 5 May.

    Today, there are probably as many family mole recipes as families to eat mole. The number of ingredients ranges from 10 to over 301, with most recipes having over 20 ingredients. Chocolate is a traditional ingredient in mole poblano and mole *** oaxaqueño, the latter being black mole from the state of Oaxaca.

    Love mole (none / 0) (#70)
    by CaptHowdy on Wed Jun 11, 2014 at 04:16:23 PM EST
    To quote Capt. Jack Sparrow: "It's remarkable how often those two traits coincide."

    That said, TB cannot be sorry about the publicity they are getting. As I doubt they'll pay any remuneration, that publicity could ostensibly be free.

    You have to think they were (none / 0) (#72)
    by CaptHowdy on Wed Jun 11, 2014 at 04:23:21 PM EST
    Smart enough to know they would be challenged at some point

    Site violator (none / 0) (#75)
    by oculus on Thu Jun 12, 2014 at 08:48:07 AM EST