—Jason Voiovich, author of the “State of the Brand” & Vice-President of Marketing for AbleNet, Inc.
It sounds like something I’d get wrong in a game of "Trivial Pursuit".
Name the belated military attempt of King William I to restore his position as monarch over the Belgians. I might have guessed the delicious-sounding "great chocolate war". It sure sounds better than the "Ten Days Campaign", but isn’t nearly as tasty.
But a "great chocolate war" is exactly what’s stirring between candy enemies Hershey Co. and Mars Inc. The former makes the ubiquitous and irresistible Reese’s peanut butter cups. The latter makes Snickers, M&Ms, and Dove chocolates. Also yummy. But the skirmish isn’t over deliciousness, it’s over something much more mundane: Packaging. And none of the lawyers are laughing.
Last week, Hershey’s lawyers went to work, filing a lawsuit claiming Dove peanut butter chocolate "Promise" squares packaging piggybacks on the success of Reese’s by using its orange, brown, and tan color scheme.
See for yourself:
Okay. I consider myself a reasonable person. And I have irrational love for all types of chocolate. But I am having trouble seeing what the heck these guys are talking about. I’ll leave the nitpicking around what the Reese’s IP actually covers to the lawyers, but suffice it to say, what other color would you use in your packaging to communicate "peanut butter"?
Green? That’s "mint". Blue? That’s "milk chocolate". Dove already used a lighter shade of orange and yellow for "caramel". Red? Purple? Those seem weird. The orange Dove uses seems to make sense, is in line with the rest of its packaging scheme (other flavors use other colors in the "swoosh"), and wouldn’t be confused for Reese’s by any reasonable person.
What do I think this is really about?
A few things. First, Hershey and Mars are the two 800-pound gorillas in the candy market. For years, they’ve struggled for the top spot, which Hershey recently lost following Mars’ $23 billion acquisition of gum-maker Wrigley. Lawsuits are one way to drain a competitors coffers and force them to respond on your terms versus focusing on their own business (think Sun Tzu).
Second, Mars should have seen it coming. As Hershey worked to make some (necessary) cost cutting moves – including closing some plants and using cocoa butter substitutes in some of its products – the PR folks at Dove thought it wise to take advantage of the situation. It’s "made in the USA" and "pure, rich chocolate" messaging certainly were on-target and competitively appropriate. Methinks Hershey is striking back more out of anger and frustration than any real chance of succeeding in court.
But might there be a deeper issue going on? Could Hershey have a secondary motivation? I’ve been on enough creative teams to know what happens when your work is the subject of a lawsuit. It’s not just demoralizing, but puts you on guard as you work on your next campaign. In other words, how willing will you be to step out into bold creative territory when your last campaign landed your client in deposition hell?
Certainly, if you mention this to a creative type, they’ll be the first to tell you they can "shake it off" and they realize that legal tussles are all "part of the game". However, you can’t underestimate the chilling effect legal action has on the creative psyche. I think Hershey knows exactly what they’re doing. I think they’re putting Mars on notice. Step anywhere close to our creative IP at your peril.
And I think it just might work.