Cookie Department Inc, a cookie maker based out of California has sued Hershey Co for the right to keep using a stylized chocolate chip teardrop on its packaging, following Hershey complained that it looked too familiar with its famous Hershey’s Kisses.
In a statement the Cookie Department Inc said, Hershey’s has threatened to file a trademark lawsuit accusing it of borrowing Kisses’ “conical configuration” without permission; it also alleged that this was in retaliation for its own lawsuit which accused Hershey of infringing on its “Tough Cookie” mark.
According to Cookie Department, the teardrop it has used since 2009 merely depicts the “universally known” shape of a chocolate chip, and called Hershey’s threatened lawsuit a “strategic ploy” to have it soften its stance in the Tough Cookie case.
It also said, the Kisses marks “inherently weak” because the design and shape of Kisses are the same as those of chocolate and baking chips used worldwide since the 1940s.
In a statement Jeff Beckman, Hershey’s spokesman said the company does not discuss pending litigation.
The Tough Cookie lawsuit concerns Hershey’s use of the phrase “Tough Cookies Only” on packaging for One protein bars. Cookie Department said a mediation is scheduled for September 16.
The case is Cookie Department Inc v Hershey Co et al, U.S. District Court, Northern District of California, No. 21-06743.