Hershey and Mars are two of the largest, most popular companies dominating America’s candy industry and their dispute over the SCARY trademark is getting scary. The competition between these two pioneers gets the most fierce around the sweetest time of year: Halloween. It makes sense. After all, according to Forbes, 75% of Americans buy candy around this time of year with the National Confectioners Association estimating over $2.7 billion having been spent on Halloween candy in 2016.
While we may not be thinking about our costumes just yet, Hershey has been getting ready for this lucrative day all year. One of those preparation tactics is through the legal system.
Last September, Hershey filed a trademark registration for SCARY in naming its candy for the Halloween season and beyond. The candy leader claimed that no one else in the confectionary industry could use the word “scary” in naming or selling candy, whether it be Halloween themed or not.
Hershey isn’t the only candy company preparing for Halloween all year-round. Mars had a few things to say about Hershey’s claim of ownership over the word “scary,” noting the vast amount of Halloween theme candy stocked on the shelves at this time of year and the importance of the season in the confectionary industry.
It’s certainly not shocking to see words like “boo” or “haunted” decorating Halloween editions of our favorite candies. Mars knew this, saw the opportunity to oppose Hershey’s trademark attempt, and took it upon filing a recent opposition.
With ownership over the SCARY mark, Hershey would be the only candy pioneer with the ability to market SCARY candy during the scariest time of year. This would leave other confectioners in the market to question whether words and phrases such as “Trick or Treat” and “spooky” could be (and should be) trademarked in the industry. This questioning would result in a flood of litigation and a dwindling in the variety of seasonally-themed candies available in the Halloween season, producing a doubly undesirable result.
I have doubts that the Trademark Office will allow Hershey to trademark the word “scary.” This isn’t a candy name like Reese’s Peanut Butter Cups or M&M, but a descriptor of which is pivotal to the nature of one of the biggest national holidays impacting the confectionary market.
**A PSA from Pirated Thoughts: Kids, you know what’s really scary, diabetes. So we urge you to enjoy your Halloween candy in moderation this year.**
Getting in her Halloween costume a few months early was author and new M/L summer slave, errr intern, Caroline Womack. Caroline is a rising 2L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.