Consumers associate a trademark with their experiences with the service or product the trademark represents. Milton Hershey prided himself on manufacturing quality products believing quality was “the best advertising in the world.” Hershey Chocolate Company trademarks and trade dress were consistent across the product line so a Hershey’s Milk Chocolate bar was easily identifiable as being from the same company as Hershey’s Cocoa. “Hershey’s” meant quality to consumers and it has always been important to the company to maintain the positive association that Milton Hershey established.
Early Trademark Action
In 1905, the Societe Generale Suisse De Chocolats, manufacturers of Peter’s Chocolate brought suit against Hershey Chocolate Company arguing that Hershey’s Milk Chocolate bar wrappers were too similar to those of Peter’s and caused consumer confusion. Milton Hershey was ordered to change his design and subsequently adopted the now iconic maroon and silver wrapper. Although he lost the case, Peter’s legal action introduced Mr. Hershey to the value of intellectual property and brand protection. When his next product, Hershey’s Kisses, was introduced in 1907, Hershey diligently surveyed the marketplace for products too similar to his own.
Hershey’s Milk Chocolate Kisses were initially available for purchase in bulk and later in 10 cent boxes. From 1907 until 1921, Kisses that were sold in bulk (meaning sold either by a specified number of Kisses or by weight) were identified by their display container and with nearby point-of-purchase placards. A square piece of tissue-paper, printed with the company trademark, placed underneath the chocolate and wrapped inside the foil wrapper was the only other means of identifying the product as Hershey’s. Since the buyer could not see that identification until after the chocolate was unwrapped, it encouraged many imitations.
To counteract the many competitors, Hershey Chocolate Company developed wrapping machinery that could insert a visual product marker, the plume or tag, in 1921. Hershey began advertising its new wrapping technology and asking consumers to look for the identification tag.
An Employee becomes a Competitor
In 1910, Milton Hershey hired James B. Leithiser, the husband of one of his cousins, to serve as general manager of all the non-chocolate businesses—what would later be consolidated as Hershey Estates. Leithiser was responsible for overseeing the majority of the town’s building initiatives and the community’s development over the next ten years.
As Milton Hershey began to expand his operations in Cuba, he asked Leithiser to move to Cuba and oversee its operations. Rather than move, in 1921 Leithiser resigned from his position and relocated to Berks County in Pennsylvania to open a confectionery business, Fleetwood Chocolate Company.
Rumors that former officials of the Hershey chocolate company who in the last few months have severed their connections with the chocolate king were about to organize a new company in Berks county have been confirmed… J.B. Leithiser….who grew up with the Hershey plant as one of the executive managers is named as president of the Fleetwood organization. [Lebanon Daily News, 01/06/1922]
A year later Fleetwood was in direct competition with Hershey’s. One item in particular caught the attention of William F.R. Murrie, president of Hershey Chocolate Company.
Protecting the Brand
When Hershey Chocolate Company began including a plume with each wrapped Hershey’s Kiss, the company also filed a federal trademark registration, registering the mark “Hershey’s Milk Chocolate Kisses” in 1923. Fleetwood’s Milk Chocolate Kisses prompted Hershey to consider the value of the term “Kisses” in general. Hershey Chocolate Company president William F.R. Murrie brought the Fleetwood product to the attention of Mr. Hershey’s attorney, John E. Snyder. Murrie thought it was imperative to protect the Kisses brand. “It seems to me that we should not surrender what rights we may have in the use of the words, ‘Kisses,’ or ‘Milk Chocolate Kisses.’”
Additional federal trademark registrations protecting the name, and unique conical shape of Kisses, both wrapped and unwrapped, were later obtained. Today, The Hershey Company continues to proactively protect the Kisses brand. One reason is to avoid a generic or “genericized” trademark. Trademarks can become “genericized” when the associated product or service acquires substantial market dominance or “mind space” and the trademark becomes a term for the product or service itself instead of a brand. Genericized trademarks include: aspirin; escalator; trampoline; and laundromat. A company risks losing its trademark and associated rights if a trademark becomes genericized and it also enables competitors to use the trademark.
Hershey Chocolate Company executives recognized the value of the Kisses brand early in the product’s history. Early and continued brand protection ensures that Kisses chocolates and confections are still only associated with Hershey.