If I showed you a photo of a piece of milk chocolate shaped like a teardrop, would a Hershey Kiss come to mind? I mean, probably—the company has pretty much cornered the market on teardrop-shaped chocolate with its signature Kisses. But one cookie maker is fighting back against the chocolate giant: Reuters reports that California-based The Cookie Department Inc. has filed a lawsuit against Hershey Co., fighting for the right to keep using a “stylized chocolate chip teardrop” on its cookie packaging.
Per Reuters, Hershey initially complained that the Cookie Department’s cookie packaging involved an image that looked too much like one of Hershey’s unmistakable Kisses. Fighting back, the Cookie Department then argued the “teardrop” imagery, which the company has used since 2009, actually depicts the “universally known” shape of a chocolate chip. (The Daily Meal reminds us that chocolate chips, a wildly popular cookie ingredient since the 1940s, also happen to be teardrop-shaped.)
The Cookie Department also called the Hershey lawsuit a “strategic ploy,” claiming that the Kiss trademark is “inherently weak” because of Kisses’ similarity to near-ubiquitous chocolate chips. With that in mind, the cookie maker is seeking an order from a San Francisco federal judge to confirm that the company has not in any way infringed Hershey’s intellectual property rights.
I tend to agree with the cookie maker here. If Hershey can claim the rights to any and all teardrop-shaped chocolate, shouldn’t the brand also go after chocolate chip manufacturers like Ghirardelli? Most baking aisle chocolate chips do, after all, feature teardrop-shaped chips on their packaging. And what about white chocolate chips? Are those on the table here? If Hershey has its way, we’ll be baking with semi-sweet cacao nibs from here on out. Nibs certainly have their place, but they’re no replacement for chocolate chips.