As the folks at the Hershey Co. see it, the shape of the company's signature chocolate bar isn't just an ordinary rectangle made up of 12 smaller rectangles, but rather is an iconic and memorable design that immediately triggers association in consumers' minds with Hershey products.
In a Lanham Act suit filed in U.S. District Court in Harrisburg, Pa., Hershey claims that the Williams-Sonoma brownie pan "unlawfully trades on the goodwill and reputation Hershey has established through its use and promotion of that product configuration trademark."
The suit was filed by attorneys Paul C. Llewellyn and Patricia A. Larson of Kaye Scholer in New York, along with Harvey Freedenberg of McNees Wallace & Nurick in Harrisburg. It was assigned to Senior U.S. District Judge William W. Caldwell.
The Hershey bar design is more than just a rectangle. It is "a chocolate bar that consists of, inter alia, a rectangle containing 12 equally sized rectangular panels arranged in a 4x3 format, with each panel having its own raised borders," the suit says.
The Williams-Sonoma brownie pan "embodies and mimics" the Hershey bar design, the suit says.
Williams-Sonoma spokeswoman Leigh Oshirak said the company had no immediate comment on the suit.
Hershey claims the infringement on its trademark was purposeful, according to the suit, as evidenced by the packaging used to sell the pan, which, according to the suit, uses a font very similar to that used on a Hershey bar wrapper.
As a result, the suit alleges, the Williams-Sonoma pan "is likely to cause consumers, purchasers and others to be confused or mistaken into believing that WSI's infringing products originate with, are sponsored or approved by, emanate from, or are otherwise associated with, Hershey or the source of Hershey's brand chocolate bars."
As an especially famous trademark, the suit says, Hershey is also entitled to protection against trademark dilution.
But Hershey claims it won't need to resort to the lower threshold of proof for dilution claims because it already had evidence of "actual confusion" among consumers -- some of it gleaned from the comment section on Williams-Sonoma's Web site, several pages of which were attached to Hershey's complaint.
Most of the customer comments are either compliments or criticisms, with many discussing tips on how to ensure that the brownies won't stick. But the suit says some customers made a direct connection to Hershey in their comments, writing "you can make your own little hershey's miniatures" and "it's like a Hershey's bar with individual brownies."
More such evidence, the suit alleges, comes from writers on food and lifestyle Web sites whose descriptions reveal an immediate connection between the Williams-Sonoma pan and Hershey bars.
One exhibit attached to the suit is an article by Charli Penn writing for CelebrityWeddingBuzz.com on the subject of actress Zooey Deschanel's wedding registry.
Penn noted that Deschanel and her fiance had registered at Williams-Sonoma and listed the chocolate bar brownie pan.
In gushing about the pan, Hershey claims that Penn provided evidence of Williams-Sonoma's trademark infringement, writing: "Being a chocoholic, I went nuts over this chocolate bar brownie pan. It bakes one giant brownie that snaps into 12 easily sharable chunks like a Hershey's bar."
Also attached to the suit is an item from BakingBites.com that refers to the Hershey bar design as a "classic confectionery icon: a flat, rectangular bar divided up into bite-sized pieces that are easy to snap off."
The article goes on to say that "Williams Sonoma is currently carrying a chocolate bar brownie pan that uses the iconic look of the chocolate candy bar to make brownies look even more chocolaty [sic] than they are to begin with."
Hershey claims in the suit that its famous chocolate bar was introduced more than 100 years ago, and that the design for it was trademarked in 1968.
The Hershey bar continues to rack up hundreds of millions of dollars in sales every year in the United States alone, the suit says.
The case is Hershey Co. v. Williams-Sonoma Inc.