Pop quiz! Which of the following popular candies—M&M’s, Kisses, Milk Duds, Chocolate covered peanuts, or Malted milk balls—is a trademarked name?
If you said Kisses, you’re right—but only just. Which leads to one of the strangest trademark cases of the past century.
ALL KINDS OF KISSES
Back in the 19th century, you could satisfy your sweet tooth with Spanish kisses, cream kisses, fruit kisses, and, of course, chocolate kisses. But these weren't the latest offerings from Hershey, who wouldn't be selling their kisses until 1907. These were kisses in the original sense, described in the 1856 Webster’s Dictionary as "A small piece of confectionery."
In 1996, Hershey filed for a trademark on the word Kiss. It was refused by the Trademark Office’s Examining Attorney, who pointed out that:
“[T]he first chocolate products manufactured by Hershey were the HERSHEY BAR for a chocolate bar, HERSHEY’S COCOA for cocoa and HERSHEY’S BAKING CHOCOLATE for baking chocolate. Then HERSHEY’S KISSES were introduced in 1907 followed one year later by HERSHEY’S CHOCOLATE BAR WITH ALMONDS for a chocolate bar with almonds.” (emphasis in original)
Every time that Hershey released a product, it was always the Hershey name followed by a generic descriptor of what was being sold. This, along with historical recipes, dictionary definitions, and use in fiction, led the Examining Attorney to the conclusion that when the first Hershey’s kiss was released, consumers knew that the word meant any small, bite-sized treat. Because it was the generic word for that type of candy, it was deemed untrademarkable.
What Hershey needed to prove was that, to the average consumer of today, kiss meant one thing and one thing only—their product. And the company had a major ace up its sleeve to do it: the question at the beginning of this article.
SURVEYING THE CROWD
Hershey commissioned a survey of potential candy buyers, who were told the difference between a brand name and a generic name and then asked whether M&M’s, Milk Duds (both brands), chocolate covered peanuts, malted milk balls (both generic), and kisses were generic or brands. The results were:
M&Ms: 94.3 percent identified as a brand, 4.4 percent identified as generic
Milk Duds: 84.2 percent brand, 8.5 percent generic
Kisses: 78.8 percent brand, 16.5 percent generic.
Malted milk balls: 33.9 percent brand, 55.7 percent generic
Chocolate covered peanuts: 19.9 percent brand, 73.7 percent generic
In 2000, the Appeals Court sided with Hershey, entirely because of the survey. The court said it proved that, although a consumer in 1907 would understand kiss to be generic, to the average modern consumer “kiss” represented not just a candy, but a particular candy from one manufacturer. So in 2001, 94 years after Milton Hershey sold his first kiss, Hershey managed to do the opposite of escalator and trampoline—they trademarked a generic word.