Art and Design: The Disappearance of British Chocolates in the U.S.
If you’re a fan of British chocolates like “Toffee Crisps” and “Yorkies,” I suggest you go to the shop and stock up, because you won’t be seeing them in the U.S. for much longer.
In a recent deal between Let’s Buy British Imports (a.k.a. L.B.B.) and Hershey’s Company, it was decided that the U.S. will no longer import Cadbury’s chocolate products made overseas. No, it’s not an FDA issue; there are no ingredients that happen to be illegal in the U.S. but not in the U.K. The reason of the ban is art (or trademark). 
What Exactly is a Trademark
Trademark, in a nutshell, is a source identifier. It can come in the form of words, symbols, colors, shapes, and designs. A trademark is the banner under which someone sells a product or offers a service. Generally, someone has a valid trademark if they own a mark that is distinctive (either inherently or with the acquisition of secondary meaning), they are the first ones to use the mark for a particular purpose (to sell a certain product or service), and they are continuously using the mark for the same particular purpose. A trademark can be registered or non-registered. Some of the advantages of having a registered trademark is that the mark holder will have nationwide protection, it is a warning to others thinking of using a similar mark in their own business, and, most relevant to this chocolate situation, it can help bar the import of goods produced abroad that use the same or similar marks. 
Brief History of Trademark
The origin of trademark is the branding of cattle. Farmers would brand their cattle in order to indicate their ownership. In the early days of the Roman Empire, one of civilization’s first trademark laws emerged in order to indicate to the consumer the creator of the product purchased. Thus, trademark evolved from a concept of “I own this” to “I made this.” Today, trademark is used to indicate the source of the product, thus claiming that a particular product “came from this company.” For example, all TVs with the label “Sony” are understood to have been manufactured by that company. Modern day trademark law is used to create a limited monopoly, indicate source or endorsement, and also to preserve the goodwill companies have instilled in the minds of loyal consumers.
Under section 32 of the Lanham Act, a trademark owner can sue someone claiming that their mark infringes upon that of their own because it gives rise to a high likelihood of confusion in consumers.  Courts across the U.S. use some form of an eight factor test (called Polaroid Factors) in order to determine the likelihood of confusion: (1) Strength of plaintiff’s mark, (2) Degree of similarity between the two marks, (3) Proximity of products or services, (4) Likelihood that the plaintiff will bridge the gap, (5) Evidence of actual confusion, (6) Defendant’s good faith in adopting a mark, (7) Quality of Defendant’s product or service, and (8) Sophistication of buyers. The court balances these eight factors and decides if there is enough likelihood of confusion to bar the defendant’s use of the particular mark in question. Thus, there is no bright line rule when it comes to trademark infringement. 
The Comparison of Chocolates
Hershey’s Company claims that the British chocolates’ packaging (i.e wrappers and candy names) are too similar to that of Hershey’s products. Many beloved Cadbury chocolate products are at the heart of this conflict. Two prominent examples pointed out are Toffee Crisps and Yorkies.
Toffee Crisp vs. Reese’s Peanut Butter Cups (Trade Dress):
In this case, the claim is that the design of the wrappers of the two products are too similar.  This is an issue of Trade Dress. As you can see from the images below, the wrapper art of the British “Toffee Crisp” has pretty much the same color scheme as the world famous trademark of the Hershey’s “Reese’s Peanut Butter Cups.” They are both chocolate candies that are most likely going to be placed on nearby shelves in shops, and candy is an inexpensive product that consumers usually buy without much contemplation (unless you’re a child who was told by their mother that they can only choose one piece of candy). It’s pretty easy to see how likelihood of confusion can be high between these two products.
Yorkie vs. York Peppermint Pattie (Trade Name):
Here, on the other hand, there is an issue of Trade Name.  As seen below, the wrapper art of the two products are completely different so, at first glance, it’s hard to imagine people confusing these two products. However, the names “York” and “Yorkie” are quite similar especially when said out loud. “York Peppermint Pattie” is a very famous trademark, and since both items are candies, they are probably going to be closely displayed in shops. In this case, it isn’t too difficult to imagine a scenario in which a hasty customer might get confused as to what to buy because he isn’t sure if his friend asked him for a “Yorkie” or a “York Peppermint Pattie.”
I am sad to see these chocolates leave the U.S., but I understand Hershey’s point of view. Candy is not something that is very expensive, so most consumers impulsively purchase them without really paying much attention. I wouldn’t want to pick up what I think is a “Reese’s Peanut Butter Cups” and find out at home that I bought a “Toffee Crisp” instead (no offense to Cadbury). Now, Hershey’s has a license from Cadbury to create the same chocolates in similar packaging as the original U.K. version. However, the recipe is different and the flavors are accordingly slightly different.  I say again, if you are a fan of British chocolates made and imported from England, go ahead and stock up now before they all disappear!!
Sources http://www.nytimes.com/2015/01/24/nyregion/after-a-deal-british-chocolates-wont-cross-the-pond.html?_r=1  15 USC § 1051  15 USCS § 1114  Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961)  http://www.huffingtonpost.com/2015/01/26/hersheys-cadbury-chocolate-wont-be-imported_n_6548430.html?ncid=tweetlnkushpmg00000067  http://www.huffingtonpost.com/2015/01/26/hersheys-cadbury-chocolate-wont-be-imported_n_6548430.html?ncid=tweetlnkushpmg00000067  http://www.nytimes.com/2015/01/24/nyregion/after-a-deal-british-chocolates-wont-cross-the-pond.html?_r=1
Toffee Crisp: Photo by Bobo under Creative Commons License.
Reese’s Peanut Butter Cups: Photo by KynaB under Creative Commons License.
Yorkie: Photo by TheFoodJunk under Creative Commons License.
York Peppermint Pattie: Photo by Pengrin under Creative Commons License.
Title image: Photo by Nofrills under Creative Commons License.