Canadian Packaging

Agents Orange

When William Shakespeare penned one of his most famous quotes in Henry VI (Part 2) with an earnest pledge, “The first thing we do, let’s kill all the lawyers,” the great playwright was clearly onto something well ahead of his time. And while the moral standards of modern civil society discourage us from recommending such harsh treatment for legal professionals who, after all, are just doing their jobs, every once in a while a case comes along that seems to set new contemptuous lows for the profession’s often-tattered reputation that, like it or not, is often of its own making.


December 24, 2010
by George Guidoni, Editor

When William Shakespeare penned one of his most famous quotes in Henry VI (Part 2) with an earnest pledge, “The first thing we do, let’s kill all the lawyers,” the great playwright was clearly onto something well ahead of his time. And while the moral standards of modern civil society discourage us from recommending such harsh treatment for legal professionals who, after all, are just doing their jobs, every once in a while a case comes along that seems to set new contemptuous lows for the profession’s often-tattered reputation that, like it or not, is often of its own making.

These days, not even packaging is immune to the lure of unscrupulous,  no-holds-barred “if you can’t beat them, sue them” legal modus operandi that puts far higher premium on legalese wordplay than common decency and sense.

Case in point: the raging legal spat between The Hershey Company and Mars Inc.—North America’s two largest manufacturers of chocolate candy—over the alleged attempt by Mars to mimic the packaging of its Dove peanutbutter Promises squares after Hershey’s Reese’s brand of peanutbutter cups.

Specifically, Hershey appears to be incensed over its competitor’s use of orange, brown and tan colors on the Promises outer wraps that it has used to market its Reese’s cups for decades, claiming trademark dilution and infringement, false designation of origin, and unfair competition. Or just about everything else short of ethnic cleansing and illegal dumping of radioactive waste, judging by the stern accusations of high-level corporate
wrongdoing in the Hershey lawsuit filed a couple of weeks ago in Harrisburg, Pa.

Not to be outdone, Mars had filed a preemptive suit a couple of days earlier in Virginia asking the federal judge to dismiss Hershey’s claims, summarized in the cease-and-desist letter sent by Hershey’s assistant general counsel Louis Douqette in early November as: “It can come as no surprise to Mars that Hershey, having objected to the color of the individual Dove peanutbutter chocolate wrappers and filed a counterclaim to obtain a change of that color, would have a serious problem with Mars revising the outer package to add orange as a substantial background color.”

Well that’s just too bad, according to Mars’ countersuit contention that, “Orange is commonly used by third parties on packaging as a generic flavor designation for peanuts, peanutbutter or peanutbutter flavoring.”

So there you have it—dozens of highly-paid legal eagles going back and forth arguing over who owns intellectual rights to the orange color in hopes of proving what amounts to outright theft of intellectual property, no less.

Frivolous? Yes, absurdly so, but in our sue-happy society, legal madness often has its own unstoppable momentum—akin to watching an unfolding trainwreck run its tragic course.

Neither Mars nor Hershey will come out of this convoluted mess smelling sweet—hence plague on both their houses, as it were—but claiming to have some sort of divine intellectual ownership of a color that has existed in nature since creation is the height of arrogance and, ultimately, a sad waste of intellectual resources that could be far better used to fight real intellectual property theft, counterfeiting, knockoff manufacturing and other such scourges of global trade that cost the world’s legit CPG (consumer packaged goods) brand-owners billions of dollars per year.

But that would be just too intellectual for some, no?