Mixing Politics with Chocolate Trademark and Trade Dress is Not So Sweet

Author: Whitney Devin Cooke

In Hershey Co. v. Friends of Steve Hershey, the U.S. District Court for the District of Maryland granted Hershey Co.’s request for a preliminary injunction barring Republican politician Steve Hershey from using campaign signs that feature the name “Hershey” in white text on a dark brown background.

Hershey had used a similar configuration on political signage dating back to 2002. Hershey Co., asserting its longstanding rights in the famous HERSHEY’S trademark and trade dress featuring the word “Hershey’s” in light colored type on a maroon background, objected to his use of “Hershey” at that time, and again in 2010 when Hershey was a candidate for the Maryland House of Delegates. Hershey and Hershey Co. reached an agreement in 2010 that allowed Hershey to use the already-printed campaign materials for the primary election but required a new design for the general election. In 2013, when Hershey again used a “campaign logo with a Maryland flag in dual tone brown as the background” and “HERSHEY” in white, Hershey Co. sued Friends of Steve Hershey, Hershey’s campaign organization, and moved for a preliminary injunction.

The court determined that Hershey Co. had established a likelihood of success on the merits of its trademark infringement claim, and rejected Hershey’s arguments that use of the HERSHEY mark and trade dress on campaign materials did not constitute use in commerce. Specifically, the court found that political activities, namely, dissemination of political information, hosting of campaign events, and solicitation of donations are “services” that constitute use in commerce. The court further held that the First Amendment did not protect Hershey because he and his organization were not using the HERSHEY name and trade dress for parody, political commentary, or other communicative purposes. Regarding the other preliminary injunction factors, the court found that the balance of equities favored Hershey Co. since Hershey had enough time to revise his campaign materials before the general election in November, and further found that any harm suffered by the campaign as a result of the injunction would be “self-inflicted.”

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