Shape Trademarks and Hershey’s Kisses
You probably know that trademarks can be words, stylized text, and pictures: like brand names, slogans, and logos. But you may not know that you can have shape trademarks trademarks could be just about anything, including shapes, colors, sounds, videos, even smells.
What do Kisses have to do with Shape Trademarks?
I want to talk to you today about one of my favorite sets of trademarks on shapes: on Hershey’s Kisses. You may never have noticed this, or if you look a bags of Hershey’s Kisses closely, you might see that they are marked as Hershey’s Kisses brand. When you pick up the candies, you can see that they have the little R-in-a-circle symbol (®) because they’ve got registered marks. You can see the distinctive shape. I’m sure you’re familiar with it.
Why are these important from a trademark standpoint? Well, because Hershey’s – the company – has registered multiple marks for the shape of the candy and the shape of the wrapped chocolate.
And that means that other people, other companies, can’t make the same products, or very similar products, candy or chocolates or things that are close to them, in the same shape.
Why do Shape Trademarks matter?
Why does this matter, especially from a trademark standpoint? Starting around the fall, maybe late fall of 2018, I’m not certain exactly when, I’m not sure anybody knows exactly when, Hershey’s started to have production problems.
They must have changed something about their manufacturing process because Hershey’s Kisses started coming out with slightly broken tips. I wrote a blog post about this back in April of 2019, when this problem was about six or so months old and went through both the registrations and also the risk that it posed to Hershey’s. That risk is the risk of abandonment for non-use.
Abandonment and Shape Trademarks
Once you have a trademark registered, you have to continue to use it. If you stop using it, you can lose the rights to that mark, which might mean that somebody else can start using that mark. In this case, because the mark is the shape of the candy or wrapped chocolate, it might mean that somebody else could start producing Hershey’s-Kisses-shaped chocolates and other candies if Hershey’s doesn’t keep using it.
A year and a half ago, almost two years ago, when I wrote that post, it seemed like a far-off prospect because it needs to be at least three years of non-use for your mark to go abandoned. Abandonment, in trademark-speak, means that the trademark owner has stopped using the trademark, and then the registration can be cancelled by someone else (or the USPTO will cancel it, when the registration would next need to be renewed).
At this point, in February 2021, we’re only about eight-to-ten months away from Hershey’s having a serious challenge in keeping these trademark registration.
Please take a look at my YouTube video, here, for a demonstration of unwrapping a couple of Kisses to see if they have broken tips (spoiler alert: they do!).
What could happen next for Hershey’s?
If Hershey’s gets to three years of non-use and then abandonment, then they may lose their rights to the mark. Hopefully for Hershey’s, that won’t happen. For other chocolate makers, maybe they’re hoping Hershey’s can’t fix the production problem.
If you have questions about these or other non-traditional trademarks, please reach out to me. You can take a look at my blog post on shape, scent, and color trademarks: and on sound trademarks and motion trademarks.
Do you have questions? Call me at 617-340-9295 or email me at my Contact Me page. Or, find me on LinkedIn, YouTube, Facebook, Twitter, or Avvo.
