The Hershey Company v Bonne Chance Pty Ltd

The Federal Court of Australia considered a dispute between The Hershey Company (the Opponent) and Bonne Chance Pty Ltd (the Applicant). The Opponent sought to oppose the registration of a trade mark by the Applicant. The core of the dispute concerned the Opponent's alleged prior use and reputation in relation to its "HERSHEY'S KISSES" branded chocolate products, particularly in the United States.

The primary legal issue before the Court was whether the Opponent had established sufficient grounds for opposing the Applicant's trade mark application, specifically in relation to its rights and reputation in the "HERSHEY'S KISSES" trade mark. This involved assessing the evidence presented by the Opponent to demonstrate its use and recognition of the trade mark as at the relevant date.

The Court examined evidence detailing the history of the Opponent's "HERSHEY'S KISSES" products, including their launch in the USA in 1907 and the evolution of their branding and packaging. The Opponent provided declarations and documentary evidence, such as website printouts and historical advertisements, to support its claims of extensive use and brand recognition. This evidence focused on the prominent display of the "KISSES" trade mark on product plumes and packaging, as well as its association with the "HERSHEY'S" brand. The Court also considered evidence of the sale of "HERSHEY'S HUGS" chocolates, which shared similar packaging to "HERSHEY'S KISSES" and were sometimes sold as an assortment under the "HUGS & KISSES" trade mark. The Opponent bore the burden of proving its grounds of opposition on the balance of probabilities.