Victory for Hershey in Posh Nosh trademark war

By Lynda Searby

- Last updated on GMT

Related tags: Civil procedure, Trademark

Posh Nosh ordered to stop importing Mars' Maltesers, Mondelez's Cadbury and Nestlé's Yorkie, KitKat and Toffee Crisp
Posh Nosh ordered to stop importing Mars' Maltesers, Mondelez's Cadbury and Nestlé's Yorkie, KitKat and Toffee Crisp
A Californian court has upheld an injunction preventing Posh Nosh, an importer of UK candy, from selling a number of confectionery brands that Hershey contends infringe its marks.

At the hearing on Tuesday, the court denied a motion from Posh Nosh to set aside a default judgement that was granted to Hershey’s at the end of September. Under the judgement, Posh Nosh was ordered to stop importing Maltesers, Yorkie, Cadbury, KitKat and Nestlé Toffee Crisp products.

Speaking exclusively to ConfectioneryNews, Hershey’s director of corporate communications Jeff Beckman said: “We are pleased the court denied the defendant’s motion and upheld the default judgment. This case is an important part of Hershey’s efforts to protect its US trademark rights and to prevent consumers from being confused or misled when they see a product name or product package that is confusingly similar to a Hershey name or trade dress.

“Hershey has always vigorously protected its brands and will continue to do so whenever we believe that others have infringed these valuable intellectual assets.”

Case history

Hershey filed suit in May​,​ alleging Posh Nosh was importing, advertising and distributing in the United States several non-US products that infringe Hershey’s trademark and licensed rights.

Products included imported Cadbury and KitKat products that violated Hershey’s exclusive licensed rights to those marks in the US, as well as imported Maltesers products that infringed Hershey’s federally registered Malteser trademark. Imported Yorkie products were also found to infringe Hershey’s exclusive licensed rights to the York mark in the US. The candy importer was also accused of infringing and diluting Hershey’s federally-registered rights in its Reese’s trade dress, by bringing Nestlé Toffee Crisp products into the country.

Hershey’s lawyers served copies of the complaint and summons on Posh Nosh, but the company did not respond, so in August the court entered default against Posh Nosh.

“Default judgement is a final judgement that can be entered in a case when the defendant does not appear and defend the case in a timely manner.”​ explained Paul Llewellyn, of law firm Kaye Scholer, which represented Hershey in this case.

On September 29, the court granted Hershey’s motion for entry of default judgment.

Two weeks later, Posh Nosh filed a motion for the default judgement to be set aside.

“A motion to set aside default judgement is a request by the defendant to ‘undo’ a default judgement and to permit the case to be litigated despite the defendants’ failure to timely appear and defend,”​ explained Llewellyn.

This week, the court denied this motion, for reasons outlined in the court report: “Because entry of default judgement was the result of Posh Nosh’s own culpable conduct, Posh Nosh has failed to establish any good cause to set aside the default judgement.”

Fighting on all fronts

A law suit with another candy importer, LBB Imports, is still ongoing.

 “Hershey has filed a similar lawsuit against another importer, LBB Imports, and will continue to enforce its rights against these and other importers and resellers who violate those rights,”​ said Llewellyn.
ConfectioneryNews invited Posh Nosh’s counsel to comment but received no response.

In April, Mars launched US legal action against Hershey​ in Virginia accusing it of copying its Maltesers brand in all-red packaging.

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