"What's in a name? That which we call a rose by any other name would smell as sweet." -- Juliet in Shakespeare's Romeo and Juliet
A legal contretemps involving central Pennsylvania hotels became a national item last month when Hershey Entertainment & Resorts Company filed a lawsuit in federal court against Radisson and its franchisee, Penn Lodge Partners, over use of the name Hershey by the Radisson Hotel Harrisburg Hershey, located 17 miles west of "Chocolate Town, U.S.A."
In its June 17 filing in the U.S. Middle District Court of Pennsylvania, Hershey Entertainment alleges trademark infringement, claiming that it alone may use the Hershey name in connection with, “among other goods and services, hotel, lodging and resort facility services.” The lawsuit seeks monetary damages, corrective advertising, legal fees and a permanent injunction.
In court papers, a lawyer representing Radisson—a Carlson brand—said Hershey Entertainment's allegations are “without merit” and that the word Hershey in the name Radisson Hotel Harrisburg Hershey is used to identify the property's geographic location in central Pennsylvania, according to Harrisburg's daily newspaper, The Patriot-News.
Identify its location in central Pennsylvania? Really?
Sanity check: The Radisson Hotel Harrisburg Hershey is located in East Pennsboro Township, Pennsylvania. You never heard of it? It's a municipality near Wormleysburg. Don't know that town, either? It's near Camp Hill, three miles west of the City of Harrisburg. Until the franchisee renamed the property last year, it had been known for 46 years as the Penn Harris.
No wonder the Radisson franchisee wants the hotel to be associated with some place that people actually know about and want to visit. Of course, that begs the question, "why Harrisburg?" Well, it IS the state capital, even though the city itself is teetering on the verge of bankruptcy and is hardly a tourism mecca, although it boasts a relatively new and well-reviewed Civil War museum.
There's no here there
There's another problem facing Radisson and its franchisee: There is no geographic location in this part of Pennsylvania that's legally named Hershey. Hershey Entertainment and its operations all are located in a municipality called Derry Township.
What, there is NO such place as Hershey? That's legally correct, albeit more than a little confusing. If there's no place called Hershey, then why do so many people think that's the name of the town?
Blame the U.S. Postal Service, which delivers mail to “Hershey, PA 17033.” It created that mailing address way back when to honor Milton S. Hershey, the famous candy maker who built the chocolate factory, town and attractions during the last century. The address covers all of Chocolate Town plus parts of surrounding municipalities.
(We central Pennsylvanians understand this lack of logic. It's just part of our charm. There are plenty of postal addresses in Pennsylvania that don't reference a town. Perhaps the most famous is Etters, the address used by people who live in Goldsboro, near the Three Mile Island nuclear power plant. Out-of-town reporters covering the Three Mile Island accident in 1979 filed hundreds of stories using an ETTERS dateline until they discovered there is no such place.)
The lawsuit has implications for the entire hospitality industry. But, at the risk of not getting straight to the point, the particulars of this case and the background that goes with it are just too good to pass up. It's also an opportunity to gain some insights into the low-profile company that dominates tourism in this part of Pennsylvania and operates two of the region's most widely known resort hotels.
A little background music, please
The Hershey Entertainment & Resorts portfolio includes The Hotel Hershey, Hershey Lodge, Hersheypark, the Hershey Bears hockey team, a zoo, two arenas, a stadium, multiple entertainment venues, a campground, several golf courses, a landscaping firm, commercial laundry and sundry other businesses, all in the place it calls Chocolate Town, U.S.A. (The company owns that name, too.)
The Hotel Hershey, described by world traveler Lowell Thomas as a “palace that out-palaces the palaces of the Maharajahs of India,” features 278 guestrooms, 23,500 square feet of function space, six F&B outlets, indoor pool, outdoor recreation complex, fitness center and a spa that offers cocoa treatments. Located on a hilltop overlooking Hersheypark, the 4-diamond property is a member of Historic Hotels of America.
Hershey Lodge, on the south side of town near Penn State's Milton S. Hershey Medical Center, is a full-service resort that features 665 guestrooms, three swimming pools, fitness center, basketball and tennis courts, six F&B outlets and 100,000 square feet of function space including three ballrooms and 35 meeting rooms. It claims to be Pennsylvania’s largest convention resort.
Hershey Entertainment should not be confused with—or assumed to be a part of—its famous relative, The Hershey Company, an enormous, publicly traded company that manufactures a gazillion different candy products. Hershey Entertainment is a much smaller, privately held company founded in 1927 when Mr. Hershey (yes, the devoted locals still call him Mister) separated chocolate manufacturing from his other enterprises.
Having established that Hershey Entertainment and The Hershey Company are separate and distinct companies, it's important to note both are controlled by the same entity, The Hershey Trust Company, which is trustee for a US$7.5-billion endowment that supports the Milton Hershey School, a residential school facility devoted to teaching disadvantaged children, from pre-kindergarten through 12th grade.
The endowment owns Hershey Entertainment & Resorts Company outright as well as a majority of the voting shares of The Hershey Company. Milton S. Hershey designed a complicated relationship between his various businesses in his "deed of trust" to ensure a stable flow of money to the school, which he considered to be his principal legacy. But that's another story.
One of the other ties that binds the two Hershey companies is the Hershey trademark. The words Hershey and Hershey's are the premier, without-a-doubt-most-important trademarks owned by The Hershey Company. They are known to countless chocolate lovers around the world. Those trademarks, like anything of value, are subject to poaching. The Hershey Company's lawyers guard them like the crown jewels they truly are.
During the mid-1980s, The Hershey Company officially licensed Hershey Entertainment to use the Hershey trademark and a limited number of its product names for use in promoting the hotels and theme park. After all, most people who visit Hershey expect chocolate to be part of the experience. (Some first-time tourists, believe it or not, are disappointed to learn the streets aren't paved with Hershey's milk chocolate bars.)
This may explain why Hershey Entertainment is taking the lead in this lawsuit. It is fulfilling its legal obligation to protect the trademarks that have been licensed to it for marketing the hotels, theme park, hockey team, golf courses, laundry and everything else it owns and operates that incorporates the Hershey name.
Is this really necessary?
Does Hershey Entertainment (and, by extension, The Hershey Company) really have to go the mat with Radisson (and, by extension, Carlson) as well as the Radisson franchisee over this issue? Intellectual property lawyers would say, “absolutely, positively.” Federal trademark law makes trademark holders responsible for policing their own rights. There is no national “trademark police” to call for help.
Moreover, if a trademark holder fails to challenge a perceived unauthorized use, it could lose all of its rights. Mark P. Kahler, an intellectual property attorney based in Austin, Texas, put it this way: “You really don't have a choice. You have to enforce your trademark rights or risk losing them. Action must be taken now to preserve the right to hold others liable in the future.”
Such an interpretation doesn't leave much discretion to the trademark owner when it comes to deciding whether to confront possible infringement.
“The basic tenet of trademark law is that when you become aware of infringement, unless you go forward and pursue the infringer, you can lose your trademark rights,” Kahler said. “When people begin using the same mark with the same goods or services as you, that's the first step toward it becoming a generic.
“Once a trademark becomes generic, it's gone—absolutely gone. Trademarks can last forever, but you have to police them.”
Thumbs down in the court of public opinion
While Hershey Entertainment may be doing its duty to protect its trademark, it is getting pounded by angry public comments. In response to the USA Today story by Barbara De Lollis, a reader nicknamed StogieGuy7 said, “I hope that Hershey not only loses, but that they have to pay all of Radisson's legal fees as well. These frivolous lawsuits are out of control and have been killing our economy and culture for decades.”
A reader using the handle Gsoncbear made a comparison to hotel names in Orlando, Florida, saying, “If (Radisson) had a hotel in Orlando called Radisson Walt Disney then yes, it could be confusing. If they had one called Radisson Orlando, it wouldn't be. Same deal here.” Mrsbowersjr said, “A little overkill on Hershey's part.”
A Patriot-News reader nicknamed Losekey expressed this visceral response: “The Hershey Co/Hershey Entertainment are the most ruthless entities in the world! They will sue or bully anyone that (just) thinks (of) the word Hershey without them making a profit. It's one thing to protect the Hershey trademark, but it's quite another to be a tyrant with every use of the word Hershey.”
There was, however, this one comment on USA Today in support of Hershey Entertainment's action, posted by Scout78: “Bottom line: Radisson was intent on benefiting from the Hershey name. Period. And that name is trademarked, so the chocolatier has a solid legal case.”
Kahler said he is distressed by public criticism of this and other trademark litigation. “Often I see legitimate trademark holders criticized as draconian for filing suit against infringements when all they're trying to do is what the law requires,” he said.
Broader implication for the hotel industry
Putting aside the wisdom of the lawsuit, this issue should open a debate on the naming trickery played by too many hotels for too many years in an obvious attempt to mislead guests who are looking for accommodations near particular destinations.
At best, the drive from the Radisson Hotel Harrisburg Hershey to Hersheypark takes 30 minutes, with typical traffic congestion. At worst it can take from 45 minutes to an hour or more—notably during the summer season. If an out-of-town family were to choose this hotel for a vacation because the name implied it was near Hersheypark, they justifiably could be very, very upset.
Are misleading names a hot-button issue for consumers? Just read the reviews on TripAdvisor.
Here is a recent comment about a major brand hotel in Bend, Oregon, that includes the word “downtown” in its name: “When checking in, I complained that it was not in the advertised location and therefore not as convenient to the purpose of our trip (exploring town without the use of our car), the clerk rudely and incorrectly stated that there were no other hotels closer to the downtown area. In reality, there are at least three.”
Another guest, who selected an airport hotel in Atlanta because the property name includes “concourse,” wrote this gripe: “I thought because it was called “Concourse” (that I would be located) literally in a concourse of the airport. It is actually a mile away from the terminal, and the shuttle service runs every 20 minutes.”
The issue of hotel names has been winked at by the hotel industry, particularly the big franchisors, for decades. We all say we want to be seen as honest, transparent, ethical and accountable. When it comes to hotel names, we don't always live up to those standards.
Rich Roberts (firstname.lastname@example.org) a 35-year communications veteran who has worked for two of the world’s largest lodging franchisors. He now is president of RDR PR LLC, which provides media relations, speech writing, executive communications, internal communications and crisis communications counseling and services. Through a network of affiliates, he also offers Web design and content, graphic design and printing and This Just In, a low-cost television advertorial product.
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