Cowan Liebowitz Attorneys Obtain Dismissal of Hershey’s Trademark Claims
NEW YORK -- January 23, 2013
The United States District Court for the District of New Jersey issued a
ruling yesterday finding that Promotion In Motion’s SWISSKISS chocolate candy
did not violate The Hershey Company’s trademark rights in its KISSES
trademark. The Promotion In Motion Companies, Inc., the Allendale, New
Jersey-based company which manufactures the popular WELCH’S FRUIT SNACKS
products and numerous other popular confectionery and snack items, first
sought to introduce SWISSKISS chocolates in 2004. However, Hershey claimed
that the product infringed its rights in the KISSES trademark, and the parties
have been litigating first in the United States Patent & Trademark Office and
then in federal court since 2005.
After a five-day bench trial in November 2011, the Court issued a 59-page
opinion in which it found that the SWISSKISS mark did not create a likelihood
of confusion or dilution with Hershey’s KISSES trademark. The Court found that
any similarities flowing from the shared use of the term “kiss” in both
parties’ marks were overcome by numerous other distinguishing elements,
including the different color scheme and Swiss theme for Promotion In Motion’s
proposed product. The Court also noted that the term “kiss” has been used to
describe small pieces of candy since prior even to Hershey’s launch of its
KISSES product in 1907, and that Hershey has co-existed over the years in the
marketplace with other candies incorporating the term “kiss.” The Court
further rejected Hershey’s two market research surveys, and credited Promotion
In Motion’s counter-survey showing that confusion was unlikely.
Michael G. Rosenberg, President and CEO of The Promotion In Motion Companies,
indicated that the Court decision vindicated Promotion In Motion’s position
throughout the case that it could create its own brand image and position that
was completely different from anything associated with Hershey’s product. “I
have said all along that we intended to develop our own premium Swiss
chocolate product that would stand in the marketplace on its own merits, and I
am pleased that the Court agreed we are free to do just that,” Mr. Rosenberg
said. The Court found that there was no evidence at all to show that Mr.
Rosenberg or his company had any intention of benefiting from Hershey’s
goodwill in any way in developing their SWISSKISS product.
The Promotion In Motion Companies was represented at trial by Richard S.
Mandel, Jonathan Z. King and Eric J. Shimanoff of Cowan, Liebowitz & Latman,
Cowan, Liebowitz & Latman, P.C.
Sylvia Moritz, 212-790-9200, Ext. 281
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