Hershey wins first round, but diet bar battle continues
the association of its nutrition bars with the popular low-carb
dietary regime, Zone Diet, in what promises to become one of the
fiercest intellectual property disputes in American history,
suggests Sibonelo Radebe.
Hershey has fought off attempts by rival pharmaceutical and food group Abbott Laboratories to block the launch of its SmartZone brand on the basis that it was an infringement of Abbott's trademark, ZonePerfect.
In April this year, Abbott filed for a preliminary indictment of SmartZone with the Massachusetts district court while it prepared a full-blown case of trademark infringement. The court ruled against Abbott, meaning that Hershey was able to go ahead with the immediate launch of SmartZone. If Abbott had been successful, Hershey could have been forced to wait years for the conclusion of the trademark case.
The judge presiding over the preliminary case said that Abbot had failed to show that ZonePerfect's performance would be in any way impacted by SmartZone, adding that the company also appeared to be attempting to sow consumer confusion by implying that its product was associated with the Zone Diet regime created by Dr Barry Sears.
In fact, Dr Sears' involvement with both companies is, in itself, a source of confusion. Having established a firm following for his Zone Diet through a series of books, Dr Sears co-founded ZonePerfect's predecessor company in 1996, only to sell his stake in the firm in 2001. Abbot then acquired the company in 2003, outbidding Hershey.
ZonrPerfect remains popular, with sales of around $100 million a year, and Abbott is clearly keen to defend its investment from the competition. The problem is that since Dr Sears has no affiliation with its brand - but retains the rights to the diet regime - he is free to form partnerships elsewhere, such as with Hershey, which claims that SmartZone is "the first-ever nutrition bar with the science-based nutritional benefits of the Zone Diet".
Furthermore, SmartZone products will be the first to carry the Dr Sears Zone Approval seal.
Indeed, Dr Sears has fully endorsed the new products: "The innovative products to be developed through this new partnership will provide a fusion of my Zone technology with the outstanding food technology expertise of Hershey Foods," he said at the time the partnership deal was announced.
Due to the unique formulation of these products, they will help stabilise blood sugar levels, which is the key to controlling hunger and thus keeping weight in a healthy range."
Despite its initial failure, Abbott will press on with its attempt to stop Hershey from selling any products associated with the Zone concept, and has taken particular umbrage at the claim that SmartZone is the first nutrition bar to be endorsed by Dr Sears.
Abbott is also accusing Hershey of something close to industrial espionage. It argues that Hershey had access to ZonePerfect's confidential information when the two were negotiating the acquisition last year, and that Hershey was now using that information to launch SmartZone.
Hershey has responded with a counter complaint that ZonePerfect's perceived association with the Zone Diet was fallacious, since only SmartZone is currently endorsed by the diet system's creator. It is demanding that ZonePerfect stop making claims linking it to the diet.
SmartZone's nutritional bars - to be sold in chocolate, peanut butter and chocolate, lemon and strawberry flavours - should hit the market before the end of the year.
