MARTINSBURG – Hershey has filed suit against a Ranson landscaping company, alleging it attempted to capitalize on the name of Hershey's candy products by using a similar name and logo.
In the suit filed March 19 in federal court, Hershey says Reese's Nursery and Landscaping and Reese Clabaugh told the candy manufacturer it would stop using the name, but still has not.
Because Hershey has extensively used and promoted the trademark name of its chocolate-covered peanut butter candy, it says it has acquired significant goodwill and public recognition.
In fact, the company sells more than $1 billion worth of REESE'S products every year, the suit states.
"The REESE'S Trade Dress is extremely well known and, as a result of Hershey's extensive sales and advertising, products bearing the REESE'S Trade Dress, including licensed products, have come to mean, and are identified with Hershey and its affiliate companies only," the suit states.
However, Reese's Nursery and Landscaping uses a name and a business logo -- which can be seen at www.reeseslandscapenursery.com -- that is nearly identical to Hershey's own trade dress, according to the complaint.
The nursery's use of the same name and similar logo belonging to Hershey's is its attempt to profit on valuable trademark rights established by Hershey, the suit states.
"Upon information and belief, Defendants engaged in the foregoing business with the intent that its use of the REESE'S Trade Dress, or anything similar, would cause confusion, mistake, or deception among member of the general public," the suit states.
Because of the nursery's use of Reese's, Hershey claims it has experienced irreparable injury to its goodwill and reputation.
In the four-count suit, Hershey is seeking unspecified actual, treble, punitive and statutory damages and profits the nursery made, plus costs, attorney's fees and other relief to which it may be entitled.
It is also asking the court to rule that Reese's Nursery and Landscaping violated United States code by selling unauthorized and counterfeit good, by falsely designating the origin of goods and by willfully and in bad faith intending to profit from the REESE'S trade dress. Hershey is asking the court to order that the nursery engaged in trademark misuse and exercised unlawful use of REESE'S trade dress without its permission.
Hershey is asking the court to prohibit Reese's Nursery and Landscaping from infringing on REESE'S trade dress, from manufacturing any product using the REESE'S trade dress, from using any false description that is likely to create an erroneous impression that the nursery's products are endorsed by Hershey, from using the REESE'S trade dress, from holding themselves out as licensees of the REESE'S trade dress and from using the REESE'S trade dress in promotional literature.
In addition, Hershey would like the court to demand the nursery deliver to the court and destroy any articles of merchandise that might be used in advertising the nursery's services. It wants an accounting of all gains, profits, savings and advantages of the nursery from its trademark infringement.
Keith J. George and John J. Meadows of Robinson and McElwee in Charleston and Jonathan G. Polak, Amy L. Wright and Jonathan Bryant of Taft, Stettinius and Hollister in Indianapolis will be representing Hershey.
U.S. District Court case number: 3:09-CV-17