Call it the candy wars, round three: This time Mars Inc. is going after rival Hershey over chocolate-covered malt balls, all-red packaging and a missing letter "s."
The McLean candy maker is accusing Hershey Co. and Hershey Chocolate & Confectionary Corp. of brand deception and trademark infringement in a pleading that pits Mars' Maltesers against a variation of Hershey's Whoppers. The latter are sold sporadically under the name Malteser — no "s" — in similarly colored and designed packages,& nbsp;according to Mars' complaint.
Mars said "Hershey's token, bad faith use of MALTESER and the knock-off, all red packaging” has caused it to lose control over its product's reputation. The complaint seeks a permanent injunction against Hershey’s use of the Malteser mark, plus unspecified damages for lost profits.
Regarding reputation, the suit takes a swipe at the quality of Hershey product: "The malt wasn't crispy — what the heck?" the complaint quotes an Amazon.com user from March 19 as writing, one of several unidentified Internet postings cited in the suit.
The Washington office of McDermott Will & Emery, which filed the suit April 15 in the Eastern District of Virginia on behalf of Mars, did not immediately returned a phone call seeking comment Wednesday.
Hershey has not formally replied to the lawsuit, but the spokesman Jeff Beckman issued this statement: "This lawsuit is without merit. The Hershey Company has owned the MALTESER trademark in the United States for more than 15 years. We intend to vigorously defend against this groundless litigation."
Here's the background: Mars began selling Maltesers in the United Kingdom during the late 1930s and in 1978 created the all-red package design the company still uses today, the suit states. In 1995 Mars registered the domain maltesers.com and the candy even has its own Facebook page with more than 1.6 million "Likes."
In the 1960s a U.S. company called Leaf Brands Inc. began selling milk chocolate-covered honeycomb balls under the name Malteser. Mars sued the company in 1993, alleging Leaf had abandoned the Malteser mark through non-use. The companies settled the action, but a few years later Leaf transferred the Malteser mark to a Dutch company called Huhtamaki Finance B.V. In 1998 Huhtamaki sold the candy name to a Hershey affiliate "to protect its Whoppers candy from competition in the United States by Mars' Maltesers candy," according to the suit.
The lawsuit says Hershey deliberately copied Mars' red packaging, including a halved image of one of the malt balls, in 2010 with the intention of deceiving candy buyers.
This is not the first time the two candy makers have gone head-to-head in court. Mars sued Hershey in 2009 over commercials for its Bliss chocolate that the hometown company said copied TV ads for its popular Dove chocolate brand. Hershey sued Mars the following year over the packaging of peanut butter chocolate Promise squares, which the Pennsylvania company said mimicked its Reese's peanut butter chocolate products.
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