Sunday, September 30, 2012

Why I won't buy Hershey's Chocolate this Halloween

M&Ms, Skittles, Starburst, 3 Muskateers,
and Snickers bars are made by M&M Mars
 Baby Ruth, $100,000 Bar, Crunch and
Butterfiner bars are produced by Nestle USA.

While sitting at my desk working on my computer, I heard my phone chime. Text. Better see who it is. It was Rina.

“Mom, when you go to the store, pick me up a bag of Hershey’s Kisses.TM I need them for a school project.”

Notice the little TM ? I’m scared to death NOT to add that. I probably should link it to the complete trademark information owned by Hershey Corporation.

You see, a few years ago, I started selling card stock on my sight. I love our Pure Luxury TM card stock. It’s thick and sturdy and the colors are just luscious!

One of the colors I introduced early on was a color that I called Chocolate Kiss. I did a little research on the color brown and I found a Mary Kay eyeshadow, a L’Oreal nail polish, a Pittsburg paint, a Roux hair dye and about 500 other products with the color name Chocolate Kiss. And you know what? They all looked like my card stock color! Perfect! That would be the describing name so people would know that my card stock was a rich dark chocolate brown.

Not so fast… A few months later I received a letter from an attorney for the Hershey Corporation. I was to immediately cease and desist from using the name “chocolate kiss” to describe my card stock. They told me the word “Kisses” was owned by the Hershey Corporation.
Really? I can’t say kisses? But I thought they were "Hershey’s Kisses?" And who ever heard of getting a trademark for a word that would encompass every possible use. I can understand if I was selling candy… sure, that might create confusion in the market. But card stock? Come on…

And what about the nail polish, lipstick, hair dye, car paint, wall paint, carpet and the 500 other products I found with the color name Chocolate Kiss?

Well, too bad, so sad. We’re coming after YOU!
And that’s what Hershey Corporation did. They made us immediately change the name of our card stock. Then, they wanted to know how much we sold, what our profit was on each sale and told us they would be willing to “settle” and not take us to court is we gave them every penny of our profit.

Honestly, I was in shock. A tiny little company like mine on the verge of being sued by the Hershey Corporation. We contacted our lawyer. He believed that they didn’t really have much of a case, especially after he looked at their trademark. It refers to candy, not card stock, or paint, or nail polish, or hair dye or anything else. Just confections.

But, it would cost a TON of money to fight them. And they didn’t care a bit about money. They had tons of it to spend. We had groceries to buy and children to take care of and employees who needed a job. So we settled. We paid every penny of our profit to the Hershey Corporation. It wasn't very much, but it was enough to hurt a little guy.
Pretty sad, huh? Big business going after a tiny mom and pop over something that wouldn’t change their sales one little bit.

So about that text from Rina? Yeah. I HATED buying that bag of Hershey’s “kisses.” Oh, and I bought a bag of chocolate for myself to balance it out. M&Ms. Since Halloween is right around the corner, I think I know who I’m not supporting. 

My friend Lydia Fielder made this comment on my facebook post:

While I do understand protecting the brand and making sure people don't make money off your brand building work, there needs to come a time in this country when we start using our brains and hearts and handshakes again and stop using our freaking lawyers. The only people who really make a killing are the attorneys. I really am stunned that they wouldn't just politely ask you not to use the name and then if you refused, do something stronger.

I think Lydia nailed it on the head. It is not my intention to hurt their business with this post. (I know I don't have that kind of power anyway!) And I don't begrudge anyone who buys their products. They make great things.

But why is it that these corporations want to come at you this way. Why not say, "Hey, I know you're a small company. Maybe you didn't know that we own the word "kisses." Please change the name of your card stock so we can protect our brand and we don't have to pursue this any further."

Even if I thought they were wrong about the word "kisses," and I do, I still would have changed the name to avoid any issues. The name really wasn't that important to me. It didn't help me sell card stock, it was just a description. All they had to do was ask. Maybe they will just ask the next guy.