Hershey and Mars Battle Over the Color Orange

The Hershey Company and Mars Inc. are fierce competitors.  They have clashed with each other in the past over Hershey’s asserted rights in the color orange, when Hershey sued Mars for using orange on the individual wrappers for its Dove Promises peanut butter chocolate candies. Matters recently came to a head again, when Hershey sued Mars for trademark infringement, dilution, and unfair competition in the US District Court for the Eastern District of Virginia. This time, the lawsuit claims that Mars’s Dove Promises outer packaging infringes Hershey’s trademark in the Reese’s Peanut Butter Cups orange packaging design.  Hershey claims that Mars is trading on Hershey’s goodwill, and that the Dove packaging will confuse consumers.

Days before Hershey’s lawsuit, Mars filed a declaratory judgment action in the US District Court for the Middle District of Pennsylvania, claiming that Hershey does not own exclusive rights in the color orange for peanut butter confections. Mars argues that orange is used industry-wide to designate peanut butter flavors.

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These lawsuits bring up a couple of important points.  First, color alone can be a trademark. Therefore, designers and marketers should be careful not to tread on any well-known colors used by competitors. Second, companies should consider developing trademark or trade dress rights in colors that are important components of the brand. A manufacturer can add a powerful element to its overall brand identity and trademark rights by selecting a unique shade of color and sticking with it over time.