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How Hershey Trademarked the Word "Kisses"

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Pop quiz! Which of the following popular candies—M&M’s, Kisses, Milk Duds, Chocolate covered peanuts, or Malted milk balls—is a trademarked name?

If you said Kisses, you’re right—but only just. Which leads to one of the strangest trademark cases of the past century.

ALL KINDS OF KISSES

Back in the 19th century, you could satisfy your sweet tooth with Spanish kisses, cream kisses, fruit kisses, and, of course, chocolate kisses. But these weren't the latest offerings from Hershey, who wouldn't be selling their kisses until 1907. These were kisses in the original sense, described in the 1856 Webster’s Dictionary as "A small piece of confectionery."

In 1996, Hershey filed for a trademark on the word Kiss. It was refused by the Trademark Office’s Examining Attorney, who pointed out that:

“[T]he first chocolate products manufactured by Hershey were the HERSHEY BAR for a chocolate bar, HERSHEY’S COCOA for cocoa and HERSHEY’S BAKING CHOCOLATE for baking chocolate. Then HERSHEY’S KISSES were introduced in 1907 followed one year later by HERSHEY’S CHOCOLATE BAR WITH ALMONDS for a chocolate bar with almonds.” (emphasis in original)

Every time that Hershey released a product, it was always the Hershey name followed by a generic descriptor of what was being sold. This, along with historical recipes, dictionary definitions, and use in fiction, led the Examining Attorney to the conclusion that when the first Hershey’s kiss was released, consumers knew that the word meant any small, bite-sized treat. Because it was the generic word for that type of candy, it was deemed untrademarkable.

What Hershey needed to prove was that, to the average consumer of today, kiss meant one thing and one thing only—their product. And the company had a major ace up its sleeve to do it: the question at the beginning of this article.

SURVEYING THE CROWD

Hershey commissioned a survey of potential candy buyers, who were told the difference between a brand name and a generic name and then asked whether M&M’s, Milk Duds (both brands), chocolate covered peanuts, malted milk balls (both generic), and kisses were generic or brands. The results were:

M&Ms: 94.3 percent identified as a brand, 4.4 percent identified as generic
Milk Duds: 84.2 percent brand, 8.5 percent generic
Kisses: 78.8 percent brand, 16.5 percent generic.
Malted milk balls: 33.9 percent brand, 55.7 percent generic
Chocolate covered peanuts: 19.9 percent brand, 73.7 percent generic

In 2000, the Appeals Court sided with Hershey, entirely because of the survey. The court said it proved that, although a consumer in 1907 would understand kiss to be generic, to the average modern consumer “kiss” represented not just a candy, but a particular candy from one manufacturer. So in 2001, 94 years after Milton Hershey sold his first kiss, Hershey managed to do the opposite of escalator and trampoline—they trademarked a generic word.

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MGM Home Entertainment
11 Fun Facts About A Fish Called Wanda
MGM Home Entertainment
MGM Home Entertainment

In 1988, the British heist comedy A Fish Called Wanda had audiences in the UK and across the pond rolling in the aisles. Thirty years later, the Oscar-winning ensemble movie about a clueless (but don’t call him stupid) weapons expert, a bumbling barrister, a quick-witted femme fatale, and a stuttering con artist remains a cult favorite. Starring John Cleese, Kevin Kline, Michael Palin, Jamie Lee Curtis, and of course, the eponymous fish, the film is packed with smart writing, silly slapstick, and some of the strongest comic performances of its starring actors’ careers. Here are 11 facts about A Fish Called Wanda for your unreserved enjoyment (just don’t ask us to repeat the part in the middle).

1. IT WAS DIRECTOR CHARLES CRICHTON’S FIRST FILM IN TWO DECADES.

Back in the 1950s, Charles Crichton was a famous director of Ealing Comedies—a series of comedy films produced by London’s Ealing Studios—who was known for his work on films like The Titfield Thunderbolt (1953), Hue and Cry (1947), and The Lavender Hill Mob (1951). By 1988, however, he hadn’t directed a feature film in two decades (though he had worked on TV shows and documentary shorts). He came out of semi-retirement to work on what would become his final film at the behest of John Cleese.

2. CRICHTON AND JOHN CLEESE SPENT FIVE YEARS WRITING THE FILM.

A Fish Called Wanda was years, even decades, in the making. Cleese and Crichton first met and began discussing ideas for a comedy heist film, inspired by The Lavender Hill Mob, all the way back in 1969. Though they parted ways professionally, Cleese continued to look for opportunities to collaborate on a film with Crichton. More than a decade later, he finally got his chance when he found himself working with Crichton on a series of business management training videos.

Though Crichton was already in his late seventies, Cleese managed to convince the semi-retired director to brainstorm ideas for a feature film with him. For the next few years, the two met periodically to throw around ideas and work on the script. All in all, the entire scriptwriting and pre-production process took more than five years and cost $150,000 of Cleese’s own money.

3. IT WAS INSPIRED BY THE EALING COMEDIES.

Unsurprisingly, A Fish Called Wanda was heavily indebted to the Ealing Comedies, especially Crichton’s own The Lavender Hill Mob, a heist comedy which starred Alec Guinness and Stanley Holloway as a pair of bumbling bank robbers. Cleese, however, claimed the parallels between the Ealing Comedies and A Fish Called Wanda were unintentional, but embraced the comparison.

“I knew that my memory of all these great Ealing films was very present, although I wasn’t consciously trying to write an Ealing comedy,” Cleese explained. “But I do remember when we interviewed Johnny Jympson when we were looking for an editor, and Johnny’d read it, and he came in and sat down, and Charlie said, ‘What’d you think?’ and Johnny was almost nervous and he hemmed and hawed a little bit and then he said very uncertainly, ‘Well, it’s an Ealing comedy, isn’t it?’ and we both said, ‘Yes!’”

4. THE ACTORS HELPED SHAPE THEIR CHARACTERS.

Cleese encouraged Kevin Kline, Michael Palin, and Jamie Lee Curtis to contribute ideas and help develop their characters. Curtis, in particular, was responsible for major changes to Wanda’s personality. "She was a sexually brazen, cold-hearted manipulator, who simply wanted money,” Curtis told The New York Times. “I didn't find that real. I decided she didn't altogether know what she wanted, but finds a wonderful power in manipulating people and feels personal satisfaction in trying to fool them. She plays a slightly different role for each man, yet she enjoys being herself, and she's not cold-hearted, not vicious.''

Curtis told The New York Times she reveled in the rare opportunity to shape her own character: ''Most films, one person is in charge, and you're afraid even to raise your hand with a suggestion,'' she explained. ''That's frustrating if you're a bright person and trust your instincts. But this was totally a collaborative effort, and I'm afraid it's spoiled me.'' She was, apparently, so enthusiastic a contributor over the course of a two-week rehearsal period that Palin gave her a shirt that read, “Wait, I have an idea.”

5. KEVIN KLINE’S CHARACTER WAS INSPIRED BY A LOS ANGELES SELF-HELP GURU.

In A Fish Called Wanda, Kline’s Otto is a pseudo-intellectual who constantly misinterprets everything from the teachings of Buddhist philosophy to the writings of Nietzsche. According to Cleese, his character was inspired by the real-life self-help guru Zen Master Rama, sometimes called the “yuppie guru.”

“I got the real key to the character out of Los Angeles Magazine,” Cleese explained in an interview. “I found a double-page spread for a guru, and I’m pretty sure his name was Zen Master Rama, and he looked about 32 and very unsure of himself, and he had a funny sort of hairstyle like a dandelion at the end of September. But the key thing was the line across the top of this two page advertisement for the seminars he ran at weekends, which was ‘Buddhism gives you the competitive edge.’ And I thought this was unbelievably funny.”

6. CLEESE’S CHARACTER WAS NAMED AFTER CARY GRANT.

Cleese named his character Archie Leach after movie star Cary Grant, who was born Archibald Leach. Though Cleese’s bumbling lawyer has little in common with the famously debonair Grant, Cleese explained that he chose the name because he and Grant shared a hometown, and because it was the closest he would ever get to “being Cary Grant.”

7. THE ORIGINAL ENDING WAS MUCH DARKER.

A Fish Called Wanda started off as a much darker comedy, but test audiences in America were apparently uncomfortable with the film’s cruelty, and lack of romantic payoff, so Crichton and his cast went in for a few re-shoots. In addition to softening Palin’s character a bit, they ended up re-shooting the film’s ending three times.

“We played the whole movie with this very sort of dark intent—it was a very black comedy—and of course, when they tested the movie in America, it tested very funny, except that people didn’t like that there was no real love story,” Curtis said, further explaining:

“The original ending of the movie was much darker. The costume designer and I had a really great time costuming this character, and in a department store in London on sale, we found a pair of shark shoes, and we bought them because we just thought, ‘Well, she’s just a shark.’ And we wore them in that last scene, and literally the last shot of the movie was going down my leg and freeze framing on the shark shoe. And right then, you knew she was going to take him for everything. The minute they got off the plane, she was going to bop him on the head, take the stuff, and leave.”

8. CLEESE CUT A BIG CHUNK OF THE CATHCART TOWERS SCENE.

In addition to changing the ending, Cleese cut several minutes from the film’s penultimate scene, in which Archie tries to get the stuttering Ken (Palin) to telling him where Wanda, Otto, and the diamonds are. Ken, whose stutter gets worse under pressure, can’t seem to utter the two words “Cathcart Towers.”

Initially, the scene was a Monty Python-esque series of increasingly absurd stunts—Ken attempting to sing the words (which remains in the final film), Archie trying to feed a tissue through a typewriter, Ken writing in toothpaste on a window—but Cleese worried the scene, which arrives at the climax of the film, was overly long and dragging the plot down, and so deleted most of it.

9. ONE AUDIENCE MEMBER LAUGHED HIMSELF TO DEATH.

Ole Bentzen, a Belgian audience member, was so tickled by the scene in which Ken has French fries stuck up his nose, that he actually laughed himself to death. The scene reminded him of a similar experience at a family dinner, in which his family had shoved cauliflower up their noses to great comic effect. He began laughing so hard, his heart rate escalated dangerously, causing a fatal heart attack.

10. IT WAS NOMINATED FOR THREE OSCARS.

Comedy movies rarely fare well at the Oscars, but A Fish Called Wanda was an exception. The film was nominated for three awards: for Best Original Screenplay (for Cleese and Crichton), Best Director, and Best Supporting Actor for Kevin Kline, who took home the statuette.

11. IT WAS THE TOP VIDEO RENTAL OF 1989.

A Fish Called Wanda beat a number of higher-budget blockbuster movies, including Die Hard (1988) and Coming to America (1988), as well as the Oscar-winning Rain Man (1988), to become the top video rental of 1989. Its success was due, in part, to an advertising partnership with Cadbury Schweppes, which plastered grocery stores for weeks with ads for the film.

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