Hershey's Legal Threats Are Leaving A Bitter Taste In Small Brewers' Mouths

Discussion in 'Beer News & Releases' started by Todd, Dec 16, 2021.

  1. Todd

    Todd Founder (6,558) Aug 23, 1996 California
    Staff Moderator Fest Crew Society Trader

    https://www.forbes.com/sites/taranu...aving-a-bitter-taste-in-small-brewers-mouths/
     
  2. dele

    dele Initiate (106) Mar 13, 2019 Massachusetts

    The Whatchamacallit claim is absurd. Whatchamacallit is a slang term that Hershey's adopted from common vernacular. If you take a basic word or phrase and use it as your brand, you don't get to stop other people from doing the same. If you want exclusivity, come up with something original.

    On the other hand, if you're putting Milk Duds and Jolly Ranchers in your beer and using those names to sell it, then you probably shouldn't be too surprised when the lawyer letter arrives.
     
  3. MNAle

    MNAle Poo-Bah (2,262) Sep 6, 2011 Minnesota
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    Simple rule, ignored and intentionally abused by many, many, many craft brewers:

    Don't infringe on, steal, or otherwise profit from the intellectual property of others.

    Oh, and when you do get caught, quitcherbitchin and stop acting like the aggrieved party.

    Simply put, you stole it. Put it back. Reimburse the owner.

    Here, I'll help for your future beer naming bright ideas: https://www.uspto.gov/trademarks/search
     
  4. MNAle

    MNAle Poo-Bah (2,262) Sep 6, 2011 Minnesota
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    That's been a Hershey trademark since 1988.
     
  5. dele

    dele Initiate (106) Mar 13, 2019 Massachusetts

    I'm no lawyer, but even with that being the case, nobody selling a beer named Whatchamacallit is stealing Hershey's idea, they're just borrowing from the same cultural/linguistic stock that Hershey's did. There's no reason Hershey's should be able to prevent that or get paid for it. Maybe Nestle shouldn't be able to sell a chocolate bar with the same name, but a beer?

    It's as if I started a dog breeding company, named my first new breed "Man's Best Friend," and then started going after pet food companies for using that phrase in their ads.
     
  6. MNAle

    MNAle Poo-Bah (2,262) Sep 6, 2011 Minnesota
    Society

    You're leaving out the bothersome step of registering the trademark.

    The registration process gives others the opportunity to object, and the proposed trademark is reviewed by the USPTO for suitability as a mark. So, apparently no one objected on sufficient grounds to stop the original registration and the USPTO considered the mark to be appropriate for registration.

    Trademarks are also registered for categories of goods. Feel free to look up the subject trademark (link given above) and see what categories it is registered for.

    Once the mark is registered, the law requires the company to defend the mark or risk losing it. They can't just ignore the infringement unless they are abandoning the trademark.
     
  7. unlikelyspiderperson

    unlikelyspiderperson Poo-Bah (1,935) Mar 12, 2013 California
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    Had to see this coming once Hershey got in to actively licensing their intellectual property for use in beers. I do feel bad for the whatchamacallit folks, as that is likely an honest mistake (and one I'd be curious to see litigated), but they should just change the name to Chingaderis IPA
     
  8. BBThunderbolt

    BBThunderbolt Poo-Bah (9,267) Sep 24, 2007 Kiribati
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    Yeah, a lot of these small breweries think that since they're so small, they won't get noticed. And, if they do get noticed they can just say 'ooopsie, sorry, our bad' and that'll make everything OK. They gotta be smarter. large companies have the internet too.
     
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  9. officerbill

    officerbill Champion (882) Feb 9, 2019 New York
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    Back in the early 60's my aunt had a summer job defending the Coke trademark. She would go to restaurants who didn't have an account with the local Coca-Cola distributor and order “a coke”. When the server didn't correct her about what was served she noted it on the receipt and the establishment would receive a letter from an attorney.
     
  10. IPAExpert69

    IPAExpert69 Aspirant (225) Aug 2, 2017 Pennsylvania

    One of those things that could be solved with a simple, friendly phone call. Instead a giant conglomerate goes straight to litigation and looks like assholes when none of this needed to occur, especially when a potential customer mistaking a chocolate bar for a beer is an impossibility.
     
  11. zid

    zid Poo-Bah (1,669) Feb 15, 2010 New York
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    After reading reviews of certain beers, I'm not so sure. :wink:

    But in seriousness - the issue is that a customer might easily think that a brewer's "Kit Kat Stout" was made in cooperation with The Hershey Company (as opposed to thinking that it was a Kit Kat).
     
  12. jesskidden

    jesskidden Poo-Bah (2,359) Aug 10, 2005 New Jersey
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    And if that doesn't work, just pull out the "David v Goliath/Big Multinational Corporation pickin' on the lil' local guy..." trope and post it on the internet (or Forbes :grin:).
     
  13. BBThunderbolt

    BBThunderbolt Poo-Bah (9,267) Sep 24, 2007 Kiribati
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    The phone works both ways ya know. Brewery: hey, we're a small brewery that doesn't sell outside of our county really, and we've got this beer that we'd like to name after a favorite phrase of our plumber. would that be cool with y'all?

    These breweries need to be proactive in these things, not reactive.
     
  14. MNAle

    MNAle Poo-Bah (2,262) Sep 6, 2011 Minnesota
    Society

    Potential customer confusion is not the only harm caused to the owner of a trademark by misappropriating it.

    In this case, I suspect the issue is profiting off of someone else's trademark.
     
  15. unlikelyspiderperson

    unlikelyspiderperson Poo-Bah (1,935) Mar 12, 2013 California
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    That's one of the weirdest summer jobs I've ever heard of
     
  16. Reidrover

    Reidrover Poo-Bah (4,478) Jan 14, 2003 Oregon
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    Who under 70 even knows that chocolate bar. It's a saying. That they got a trademark ™️ n a popular saying shows how the American legal system serves the powerful
     
    #17 Reidrover, Dec 17, 2021
    Last edited: Dec 17, 2021
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  17. Reidrover

    Reidrover Poo-Bah (4,478) Jan 14, 2003 Oregon
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    and i don't why brewers would use the Hershey's name. Most foul/artificial "chocolate" ever. Just terrible stuff
     
  18. JHDStein

    JHDStein Initiate (85) Aug 16, 2013 Germany

    Calling first only makes sense if you just want them to stop. And you don’t care if they do it again. Sending an official cease-and-desist letter by registered mail creates a legal record you can use to show you defended your trademark. It is also necessary if you wish to recover the profits they made from the usage of your trademark.

    I can understand how this looks like the big, bad corporation extorting money from the poor, little brewery. But the brewery used their trademarked name and presumably made a profit doing so. The “absurd” sums of money they are asking for are just the opening negotiation stance. I’d imagine it’ll get sorted at a workable amount.
     
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  19. jesskidden

    jesskidden Poo-Bah (2,359) Aug 10, 2005 New Jersey
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    But that's what a Trademark is.
    Well, any company can apply and get a Trademark but "powerful" companies are able to spent the money to aggressively protect them (and, also, intimidate smaller firms to not oppose a challenge).
     
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  20. IPAExpert69

    IPAExpert69 Aspirant (225) Aug 2, 2017 Pennsylvania

    Nobody answering that phone call in that direction, the way the world works
     
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  21. jesskidden

    jesskidden Poo-Bah (2,359) Aug 10, 2005 New Jersey
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    Then do a simple TESS search for "Whatchamacallit" - which turns up 8 "Live" trademarks, most of them Hershey's.
     
  22. DIM

    DIM Poo-Bah (3,246) Sep 28, 2006 Pennsylvania
    Society

    Do you have kids? Hershey's isn't good, but the average "chocolate" easter bunny is far more vile.
     
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  23. unlikelyspiderperson

    unlikelyspiderperson Poo-Bah (1,935) Mar 12, 2013 California
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    Who has the ones that aren't Hershey's
     
  24. jesskidden

    jesskidden Poo-Bah (2,359) Aug 10, 2005 New Jersey
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    Well, since the link's still open in my history...
    No idea why Joey Tomato's TM is listed as both "LIVE" and "CANCELLED". (Never finished getting my law degree).

    So, none close to Hershey's "G & S" - Goods & Service - segment. But then is "Beer" close to Hershey's G&S of "Candy"?

    Never used to be, but these days? :grin:
     
  25. BBThunderbolt

    BBThunderbolt Poo-Bah (9,267) Sep 24, 2007 Kiribati
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    But, at least they tried. They showed effort and good faith. Just waiting for this situation to develop the way it did makes them look like bratty little punks.
     
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  26. jesskidden

    jesskidden Poo-Bah (2,359) Aug 10, 2005 New Jersey
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    Funny that no one has brought up the Trademark case study of the dispute between the owners of the Thingamajig™ and the owners of Thingamabob™ ---appeal after appeal, threatening to take it right up to the SCOTUS ---- and then the Doohicky™ people got involved!:astonished:
     
  27. MNAle

    MNAle Poo-Bah (2,262) Sep 6, 2011 Minnesota
    Society

    So, Millennial businesses should be allowed to ignore Boomer trademarks?

    IDK... ignorant and entitled, maybe.
     
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  28. IPAExpert69

    IPAExpert69 Aspirant (225) Aug 2, 2017 Pennsylvania

    Maybe copywriting colloquialisms is ridiculous and shouldn't happen :smirk:
     
  29. MNAle

    MNAle Poo-Bah (2,262) Sep 6, 2011 Minnesota
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    IDK. Pert near every author does that (when in combination with other words and phrases, that is).
     
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  30. dbrauneis

    dbrauneis Poo-Bah (9,942) Dec 8, 2007 North Carolina
    Moderator Society Trader

    I’m considerably under 70 but I definitely remember this candy bar from my childhood - on the other hand, I can’t remember the last time I saw one (at a store or in my kid’s Halloween candy). I guess as the mark is still active they must still be making it.
     
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  31. JackHorzempa

    JackHorzempa Poo-Bah (5,283) Dec 15, 2005 Pennsylvania
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  32. officerbill

    officerbill Champion (882) Feb 9, 2019 New York
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    This would have been around 62 or 63. Her and several other high school students would spend a few hours on Friday evening, Saturday, and Sunday going to diners, burger joints, etc. ordering a “coke” and fries or something like that. On Monday they would take their receipts to the Coke distributor who reimbursed them and gave them some cash.
     
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  33. MNAle

    MNAle Poo-Bah (2,262) Sep 6, 2011 Minnesota
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    They'd have kept themselves very busy if they lived in east Texas.

    Customer: "Burger and a coke."
    Server: "What kind? Dr. Pepper? 7-Up? RC?"
     
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  34. Justonemore91

    Justonemore91 Zealot (551) Nov 24, 2018 New York
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    Imagine opening up a brewery and having no original ideas and relying on gimmicks to sell beer smh
     
  35. jesskidden

    jesskidden Poo-Bah (2,359) Aug 10, 2005 New Jersey
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    Wow... that's so weird.

    Now, when I owned a small general store way upstate NY, some people called all pop (aka "soda") Pepsi.
    "Ya got any a' dem orange pepsis?"
    "Get me a root beer pepsi outta the cooler, will ya..."


    They also called Pabst Blue Ribbon (my best selling beer) just "Blue".
    "My dad said to put this sixpack of Blue on his tab..."
    "Sorry, no beer on the tab."

    When I first heard it, figuring since I was in Genesee Country (I wasn't). so they meant Genesee Beer 'cause the sixpacks of throw-away bottles came in a blue carton.
    [​IMG]
     
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  36. Coronaeus

    Coronaeus Poo-Bah (1,653) Apr 21, 2014 Canada (ON)
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    I’m surprised this doesn’t happen more often. It seems like every other week I see a new beer being released that ‘borrows’ a barely altered trademark from some other food or drink without any explicit agreement noted.

    RAR Out of Order Slash Puppy!? Equilibrium Swiss Bliss!?

    Come on…
     
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  37. BBThunderbolt

    BBThunderbolt Poo-Bah (9,267) Sep 24, 2007 Kiribati
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    One more reason to let Texas secede from the union.
     
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  38. BBThunderbolt

    BBThunderbolt Poo-Bah (9,267) Sep 24, 2007 Kiribati
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    And then, a bit later on, Blue meant Labatt Blue.
     
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  39. IPAExpert69

    IPAExpert69 Aspirant (225) Aug 2, 2017 Pennsylvania

    That being a small, but key distinction imo