By Nick Stark
IN A VERY worrying development for British expats with a sweet tooth (and aren’t we all?), the candy giant Hershey Corporation is waging a lawsuit against leading importers of British confectionery which, if successful, will likely result in making it impossible to buy British Maltesers, Kit Kats, Yorkies and other favorites at your local British import store.
In what has the makings of a classic David vs Goliath battle, the deep-pocketed candy giant has trained its legal guns on the two major importers of British sweets, LA-based LLB Imports and New Jersey’s Posh-Nosh Imports.
The lawsuit stands on two key issues, specifically that the packaging of certain imported candies so closely resemble Hershey’s products as to cause ‘confusion’ in the mind of consumers, and that other imported British chocolate products – including Yorkie, Maltesers, Kit Kat and Rolo – infringe on Hershey trademarks. These brands are made and sold by Nestlé and other companies outside the U.S., but Hershey has the exclusive right to sell products under these brand names in the U.S., the suit says. In the case of Yorkie, Hershey says the name infringes on its license to sell York peppermint patties in the U.S.
According to the wording of the lawsuit, LBB’s sale of the imported candy “is likely to cause confusion … and to deceive the public as to the approval, sponsorship, license, source or origin” of the products. The suit claims, for example, that consumers could confuse the popular British treat Toffee Crisp for Reese’s Peanut Butter Cups, which have annual U.S. sales of more than $1 billion. How, you might ask? Because “both have the same orange background color and both feature a slanting, yellow font with brown outlining.” According to the suit, Hershey – which reported total sales in excess of $7bn in 2013 – has trademarked the “distinctive” packaging.
The British Weekly offices get through plenty of British candy all year round, and the notion that Toffee Crisp could ever be confused for Peanut Butter Cups stuck us as ridiculous. We also wonder that since Hershey considers the Yorkie bar such a threat to their York peppermint patty brand, will they also soon be launching a lawsuit against a certain breed of small English terrier dogs?
However, in the interests of research we took a trip to a local British import store in Santa Monica to conduct some field research – where Hershey’s claims prompted derision. And concern.
“I’ve never heard such nonsense in my life,” said Alex Moor, 38. “If we wanted Peanut Butter Cups why would we go to a British store to buy them? You can get them at any 7-11.”
Another customer, who preferred not to give her name, told us: “There’s no confusion about this chocolate’s origin,” she said, pointing to a Yorkie bar. “It’s because I know where it comes from that I choose to buy it.”
Among other claims in the lawsuit, Hershey alleges that LBB “continues to import and sell the infringing products, despite previously admitting that its actions infringed Hershey’s trademark rights and repeatedly agreeing to stop its infringing conduct.”
According to the lawsuit, lawyers for Hershey first wrote to LBB in December 2012, asking it to stop selling the products. In August 2013, the lawsuit says, Nathan Dulley, president of LBB, agreed to stop the sales, but LBB has continued selling the candy. A check of the LBB website this week showed all of the products, except Cadbury’s, for sale.
The lawsuit asks that LBB be stopped from advertising or selling the imported products.
A leading local British import shop (who asked not to be named) told us in an email: “If they win the suit there will be NO more UK and EU Cadbury products in you local British shops like ours, no Flakes, Crunchies, Buttons, no Curleywurlys and NO Easter Eggs next year. In fact nothing from Cadbury other than Hershey Cadbury and we don’t sell that.”
We would urge all British Weekly readers and others concerned about this lawsuit to contact Hershey and protest their actions.
Hershey’s CEO John P. Bilbrey can be reached at: johnpbilbrey@hersheys.com. The directors can be reached at: independentdirectors@hersheys.com. Hershey’s phone number is: 1-800-468-1714 or by mail at: The Hershey Company, Attn: John P Bilbrey, President & CEO, 100 Crystal A Drive, Hershey, PA 17033.
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