Hershey bars preliminary injunction claim against SmartZone

In ZonePerfect Nutrition Company v Hershey Foods Corporation (Case 1:04cv10760 RGS), the District Court of Massachusetts has refused the plaintiff's claim for a preliminary injunction to halt the defendant from selling a line of snack bars under the name SmartZone.

Both ZonePerfect Nutrition Company, which is owned by Abbott Laboratories, and Hershey Foods Corporation manufacture products designed to be compatible with the Zone Diet, founded by Dr Barry Sears, a former research scientist at Boston University School of Medicine. ZonePerfect bought the ZONEPERFECT trademark from Sears and his associates in 2001 for $5 million, and millions of customers buy its products. Hershey also has an agreement with Sears and is allowed to use a 'Dr Sears Zone Approved' seal on some of its products.

Following the launch by Hershey of a new line of snack bars under the name SmartZone, ZonePerfect sued Hershey, claiming that the name infringed its ZONEPERFECT trademark. Hershey countersued, accusing ZonePerfect of false advertising. ZonePerfect moved for a preliminary injunction, seeking to prevent Hershey from continuing with the launch of the SmartZone bars.

The District Court of Massachusetts refused the request and postponed the underlying suit.
It stated that: "ZonePerfect appears to be attempting to sow customer confusion by implying that its product is associated with Dr Sears and his Zone Diet".

Subject to a request by ZonePerfect to the court asking it to reconsider the decision to postpone the trial, it looks likely that the trademark infringement action will now not be heard for at least a year.

Douglas Wood, Reed Smith Hall Dickler, New York

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