Hershey's Misguided Lawsuit Against Williams-Sonoma Blows a Marketing Opportunity

Last Updated May 27, 2010 6:16 AM EDT

The Hershey Co. (HSY) is offended that the new brownie pan from Williams-Sonoma (WSM) -- seen at right -- resembles its famed chocolate bar. But instead of approaching the luxury housewares company to see if it might make it look exactly like a Hershey bar, Hershey is suing for trademark infringement.

There goes a great marketing opportunity.

I'm not a trademark attorney, but more than one chocolate bar in the world is rectangular and has breakable littler rectangles. Cadbury bars -- which Hershey has a license to make in the U.S. -- don't look all that different. So it's unclear if Hershey really has a strong case here. The W-S pan says "chocolate" inside the little rectangles. No sign of the Hershey's name. But it otherwise looks strangely familiar, though it has fewer rectangles than an actual Hershey bar.

Rather than suing, Hershey might have seized on this chance to form an alliance with W-S. If W-S put out an official, licensed Hershey-bar brownie pan, both companies could sell it. It would basically be a form of free marketing for Hershey and a brand-builder.

Consumers tend to snap up merchandise that celebrates iconic American brands, which Hershey already knows well -- it sells pens that look like sticks of Twizzler licorice and banks that look like a Hershey's syrup bottle. A Hershey-bar brownie pan would probably sell more for W-S than the more generic pan they have out now, so it could be a win all around.

Hershey also could have ignored the brownie pan and simply let the subliminal suggestion of a Hershey bar filter into consumers' brains when they ate brownies made from the W-S pan. Still kind of a win for Hershey.

Instead, the company's gone all litigious on W-S and blown its chance to turn this into a fun marketing item. It's usually difficult to form friendly marketing alliances with companies you're suing. Instead, now Hershey is the butt of jokes about trying to trademark the rectangle.

Hershey bar photo via Flickr user manuuu!; brownie pan photo courtesy of Williams-Sonoma

  • Carol Tice

    Carol Tice is a longtime business reporter whose work has appeared in Entrepreneur, The Seattle Times, and Nation's Restaurant News, among others. Online sites she's written for include Allbusiness.com and Yahoo!Hotjobs. She blogs about the business of writing at Make a Living Writing.