Mars and Hershey in a 'Whopper' of a Dispute
Two candy company giants are going to court over chocolate-covered malt balls and how the public recognizes them. In 2010, Hershey made the decision to rebrand “Whoppers” as “Maltesers” and sell them in red packaging. Meanwhile, Mars claims to have been selling its chocolate-covered malt balls under the name “Maltesers” since as early as 1936. Mars claims use of the red packaging back to 1978. Mars does not dispute, however, that it has never applied for registration of the trademark “Malteser,” while Hershey argues that it has held federal rights in the trademark “Malteser” for over fifteen years.
Now Mars has filed a complaint in the Eastern District Court of Virginia alleging Hershey is passing off the former “Whoppers” chocolate as “Maltesers” without having disclosed its rebranding to the public.
Moreover, Mars disputes Hershey’s chain of title in the trademark registration of the “Malteser” mark. In 1998, Hershey purchased the “Malteser” trademark from a company named Huhtamaki Finance. Mars claims this purchase and subsequent assignment was improper because Huhtamaki Finance improperly obtained the registration from a confectioner named Leaf Brands, the original registrant of the “Malteser” trademark. Mars had already been involved in litigation with Leaf Brands in 1993, but settled out of court.
Clearly, Mars is arguing that Hershey is infringing on their trademark and goodwill (especially with the use of the confusingly similar red packaging) Mars has built off of the “Malteser” mark. Most likely they will try to argue that they are a senior user that holds prior use in the mark since 1936 despite never having registered the mark. It will be interesting to see how this litigation between the candy giants unfolds.
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