Trademarks: Hershey Sues in Indiana Over Parody

Thanks to a bit of bad health, I was not able to write on this until today. Probably my delay turned out well as this case is getting some attention.

First, the following from the Indianapolis Star caught my eye:

Parody leads to Hershey suit in Indy

"Hershey, the largest candy maker in the U.S., has filed suit in Indianapolis, charging a Pennsylvania apparel-maker with infringing on its trademark."

Bloomberg News reports today that the suit against X-it! Activewear Inc. accuses the company of selling counterfeit products and, under Indiana's Crime Victims Act, Hershey is seeking triple damages.

Hershey claimed X-it! made a derogatory parody of Hershey's famous slogan for its Almond Joy candy bar: "Sometimes you feel like a nut! Sometimes you don't!" Hershey was issued a registered trademark for those words in 1990.

Trademark infringement? Okay, I was a bit leery about that but using Indiana's Crime Victim's Statute, too? That definitely raised my eyebrows. Some others have already commented on the trademark issue.

Trademark “crime”? from Likelihood of Confusion nails my initial reaction:

Crime Victims Act — trademark infringement?

I don’t find the concept entirely offensive. Some kinds of counterfeiting, such as raw knockoffs and counterfeits, really are crimes, and should be treated as crimes. Using victim statutes this way could be a fair balance to the tendency of law enforcement to ignore this stuff.

Except that I just do not see how the Crime Victom's Statute (commonly called here the Treble Damages Statute) applies to this kind of case. Take a look at IC 34-24-3-1 and then track down the criminal statutes that serve as the predicate for that statute. I hope that answers the question asked by Your Name Is My Business in the article Pennsylvania Companies Drop Gloves In Indiana (by the way, why is it so hard to post comments on a WordPress blog?). Without something special about Indiana law (which I cannot see), the following comment from Your Name Is My Business makes an even stronger impact:

Hershey is located in, well… Hershey, PA. X’It Activewear is located in Allentown, PA (about an hour and a half apart, if that). The venue seems rather vindictive, doesn’t it?

I will try to track down Hershey's Complaint on Monday. Maybe that will solve these mysteries.