By Eric Schroeder | Food Business News | Updated: 2021-03-11
The Cookie Department, Inc., a Berkeley, Calif.-based nutrition cookie company, has filed a lawsuit against The Hershey Co. and One Brands LLC, accusing the companies of infringing on its "Tough Cookie" registered trademark.
As part of the complaint filed Dec. 23 in the US District Court for the Northern District of California, The Cookie Department said Hershey's One Bar Protein Chocolate Chip Cookie Dough flavored bar bears the mark "TOUGH COOKIES ONLY" on its packaging and advertising material, depicts a chocolate chip cookie image on its packaging and claims 20 grams of protein per serving. In making the claims, The Cookie Department said Hershey is infringing on the trademark it has had since 2012 for the purpose of marketing and selling its Tough Cookie nutritious protein cookie, which in its latest formulation contains 10 grams of protein.
"The 'TOUGH COOKIES ONLY' mark by defendants is a clear play on words identical to the same play on words employed by TCD's Tough Cookie mark, specifically intending to call out and market the protein enriched nature of a chocolate chip cookie flavored protein snack," The Cookie Department noted in its complaint. " By using the mark, Hershey's and One Brands have and will continue their infringement of TCD's Tough Cookie mark, creating confusion for consumers, including but not limited to leading consumers to believe: (1) that TCD has been acquired by Hershey's given Hershey's history of acquiring other brands, therefore mistakenly believing that TCD's goods are associated with Hershey's, or (2) that TCD and Tough Cookie are trying to imitate or replicate Hershey's or One Brands products."
The Cookie Department was founded by Chef Akiva Resnikoff in 2009 in Berkeley. Early in its history, The Cookie Department launched a line of cookies known as Fully Functional Cookies. The cookies were introduced as The Cookie Department’s core line of cookie products focusing on cookies with unique functional ingredients that transform cookies into nutritionally healthier snacks. In addition to Tough Cookie, the Fully Functional Cookies line includes Awaken Baked, Great Full and Snap Back.
Hershey and One Brands have not commented on the complaint.