Trademarks, symbols, mascots, even fonts and colors and packaging materials — all these and more fall under category of law called intellectual property.
In essence, intellectual property law says that a company or a person is entitled to own an idea, just as they can own land or a car or a factory.
In the food industry, intellectual property is extraordinarily important. When dozens of companies around the globe sell chocolate bars, it's important that a company's bars look different from the competition's (even if they don't taste very different).
But what seems clear when you read it in a legal textbook can be more opaque in the real world. Icons and mascots can be tricky. How many different brands of milk can put a cartoon cow on their cartons before no one can tell them apart?
No wonder so many brands have filed lawsuits over intellectual property. Here are our picks for the five most interesting cases in the annals of food industry intellectual property.
The lawsuit is new, but the brand icon at the center of the case is more than a century old.
A descendant of a woman named Anna Short Harrington has sued Quaker Oats and its parent company PepsiCo for $2 billion, arguing that Harrington was not adequately compensated for the use of her likeness on packages of Aunt Jemima brand pancake mixes and syrups.
No one disputes that Harrington was Aunt Jemima. The problem is that she wasn't the only one, nor the first. Rather, about a half century after the character first appeared, Quaker hired Harrington to act as a spokesperson. The legal issues, as near as we can tell, have to do with whether or not Harrington was an employee of Quaker during the time, or some sort of independent contractor.
The Chihuahua lawsuits
In 1997, the Taco Bell restaurant chain began running ads featuring a talking Chihuahua who exclaimed, in a heavy accent, "¡Yo quiero Taco Bell!"
A star was born. The dog became wildly popular, and Taco Bell wound up using her in a number of ads.
In 2003, after the restaurant chain stopped running the ads, two Michigan men filed a lawsuit alleging that they had pitched the Chihuahua idea to Taco Bell prior to the start of the campaign. Taco Bell, they claimed, liked the idea, took it, but then hired the TBWA ad agency to execute it.
A court agreed and awarded the men $30.1 million. Taco Bell then sued TBWA, arguing that the agency should have to pay the guys in Michigan because a) the agency should have known about the earlier pitch, and b) Taco Bell's contract with TBWA protected the restaurant chain from legal action. A court disagreed, and left Taco Bell holding the bag.
Hershey vs. Marijuana Dispensaries
When Washington State and Colorado legalized the sale of marijuana, it created an entirely new industry. And as is often true of newcomers, the rookies seemed to not know the rules by which the big boys play.
In June, Hershey began filing lawsuits alleging that pot dispensaries were selling marijuana-filled knockoffs of the chocolate company's well-known brands. At issue were products like "Reefers Peanut Butter Cups," which apparently resemble Reese's Peanut Butter Cups, even when you're not high.
Hershey has also filed a similar lawsuit against a politician for using colors and fonts that resemble the ones on Hershey candy bars for his campaign signs. And that politician is actually named Hershey.
Kind vs. Clif
A lawsuit that's working its way through the court system now may have significant impact on the entire food-packaging industry.
Kind, which sells its Kind bars in transparent plastic wrapping that lets customers see nuts and other ingredients inside, is suing Clif for selling its new Mojo bars in transparent plastic wrapping that lets customers see nuts and other ingredients inside.
Kind's argument seems to be that its packaging style is integral to its brand identification, and that Clif's use of similar packaging on a similar product is a trademark violation.
We'll wait to see how the courts rule, but it's worth noting that the case seems to be growing more complex each day. First, see-through packaging has become an absolute craze in food. Second, rival Larabar has also begun using transparent plastic wrapping that lets customers see the nuts and other ingredients inside.
The intellectual property battle to end all intellectual property battles began back in 1998, when Kellogg's sued Exxon Mobil. At issue were what might have been two of the best-known trademarks in the world, and what were certainly the best-known cartoon tiger mascots.
Kellogg, which had adorned its Frosted Flakes boxes with pictures of Tony the Tiger since the 1950s, was upset by the reappearance of Exxon's tiger. Back in the 1960s, one of Exxon's predecessor companies, Standard Oil of New Jersey, had used a cartoon tiger to urge customers to "put a tiger in their tank" at its Esso gas stations. But by the 1980s, the gas-station tiger had disappeared.
Then in the 1990s, Exxon revived the tiger in advertising that promoted the convenience stores that the oil company was building at its filling stations. Since convenience stores sell food, Kellogg decided its trademarked Tony was at risk.
The case dragged on for years, eventually coming to the Supreme Court, which declined to overturn a lower court ruling that Kellogg had grounds to sue, even though it had not done so back in the day when the two mascots first appeared.
Eventually the two companies settled the dispute. The Exxon tiger seemed to fade away into history. Whereas Tony the Tiger wound up embroiled in a dispute over palm oil.
Would you like to see more food news like this in your inbox on a daily basis? Subscribe to our Food Dive email newsletter. You may also want to read Food Dive's look at four things you should know about ag drones.