Mars yesterday filed a complaint in the US District Court for the Eastern District of Virginia. It accused competitor Hershey of passing off products as Mars’ Maltesers and causing Mars financial damage.
Hershey owns a trademark for ‘Malteser’ in the US and sells the ‘Malteser’ brand with red packaging. It also sells chocolate-covered malt ball Whoopers candy.
“By its recent coping, Hershey has tricked consumers in the United States into buying fake Malteser candy instead of real Mars’ Maltesers candy,” said Mars in its court filing.
“Hershey did not actually develop a unique product under the Malteser mark. Instead, Hershey sporadically passes off Whoppers candy and Maltesers candy – selling Whoppers under the Malteser mark, without disclosing the switch to consumers – merely to reserve rights to the Malteser name.”
Jeff Beckman, director of corporate communications at Hershey, told ConfectioneryNews: “This lawsuit is without merit. The Hershey Company has owned the Malteser trademark in the United States for more than 15 years. We intend to vigorously defend against this groundless litigation.”
Mars said it created its chocolate-covered malt ball candy in 1936 and branded it Maltesers. It adopted red packaging in 1978, but never registered a US trademark for the brand.
Hershey’s affiliate Homestead Inc. purchased the ‘Malteser’ mark from Dutch liability firm Huhtamaki Finance in 1998, which Mars claimed had itself improperly registered it.
Huhtamaki Finance previously obtained the mark from confectioner Leaf Brands, the original registrant in the US. Mars sued Leaf brands in 1993, but the parties settled out of court.
The United States Patent and Trademark Office allowed Hershey to maintain the Malteser trademark after it was acquired from Huhtamaki Finance.
Mars called the mark registration as a move that “attempted to block Mars from selling Maltesers candy in competition with Hershey’s Whoppers candy”.
“Hershey’s wrongful conduct is causing irreparable harm and monetary damages to Mars,” it said.
Hershey: Red packs used for 50 years
Hershey's Beckman said that Leaf had used red packaging when it owned the Malteser mark.
"The earliest we found was registered in 1961. Leaf Malteser packaging in the 1980s was red with yellow lettering. The version of the packaging that immediately proceeded our current package was still a red package with a graduated shading of red that was darker at the top, but it was still a red package."
He added that Whooper and Malteser had coexisted in separate packaging with different color schemes for decades.