Amazon Sued For Selling Smarties

from the dumbies dept

Wed, Jun 9th 2010 1:56pm — Mike Masnick

I remember, as a kid, enjoying "Smarties" candies, which were basically hard pill-like tablets of pure sugar that were sold in rolls. It turns out that in the rest of the world, there's a totally different kind of Smarties, made by Nestlé, which appear to be something like M&Ms (honestly, I had no idea). Those Smarties have been around since 1882. The American kind of Smarties (the sugar pills) have been made by Ce De Candy since 1942. Of course, now we live in a global world, and the two types of Smarties are coming into conflict, with Amazon in the middle. Apparently, the Ce De Candy company has obsessively kept the real Smarties out of the US for years (hence my ignorance of them). In other countries, Ce De Candy has rebranded its Smarties -- such that, in Canada, they're called Rockets. However, it apparently has no interest in doing so in the US, so we're left without the Smarties the rest of the world knows and loves.

But, yes, in this global world, with lots of immigrants and travelers, plenty of people in the US would like the other kind of Smarties, and found they could get their supply via Amazon. And, for that Amazon is facing a lawsuit by Ce De Candy, claiming trademark infringement. I can't see how Amazon should be the one to be blamed here, though. It is accurately selling products. In fact, my guess is that it's not even Amazon doing the selling, but some of Amazon's merchants who are actually fulfilling the market desire for the "real" Smarties. Unfortunately, due to some legal quirks, trademark law doesn't have an automatic safe harbor, like the DMCA or Section 230 of the CDA, protecting third party service providers from lawsuits over actions of their users. But, either way, hopefully a court recognizes that this whole thing is ridiculous and tells Ce De Candy to go pound sugar...

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Filed Under: smarties, third party liability, trademark
Companies: amazon, ce de candy, nestle

44 Comments

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Anonymous Coward, 9 Jun 2010 @ 2:02pm

It shouldn't be a trademark issue unless the seller is pretending to be Ce De Candy. But in the U.S. common sense has no part in our legal system.
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- Mark Harris, 9 Jun 2010 @ 2:33pm
  
  Re:
  The trademark is not necessarily the company name, but the product name. A company can have multiple trademarks and you don't have to pretend to be the company to infringe on a particular trademark. You only have to make use of the trademark within the same industry sector. #IANAL
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Joe, 9 Jun 2010 @ 2:25pm

now I'm going to have to drive down to America to buy smarties. Our's in Canada are sold in iphone sized boxes, they have a hard outer shell in a variety of colours and the interior is hard chocolate. Your's are just pure sugar? are they any good?
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- Esahc (profile), 9 Jun 2010 @ 2:37pm
  
  Re:
  Not worth the trip, however Necco waffers are awesome: http://www.necco.com/ourbrands/default.asp?brandid=7
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- Chuck (profile), 9 Jun 2010 @ 2:42pm
  
  Re:
  If you read the articles, you'd know they are sold as rockets up here in Canada. I'm sure you'll be able to find it somewhere.
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- rabbit, 9 Jun 2010 @ 2:45pm
  
  Re:
  OMG. not as good as the nestle smarties...i have a connection that ships them to me now that i don't live 90 minutes from the canadian border.
  
  what? yes, i actually have drivenn 90 minutes just to get smarties. is that weird?
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  - Niall (profile), 10 Jun 2010 @ 4:34am
    
    Re: Re:
    You, rabbit, are a hero :)
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- Seshan (profile), 9 Jun 2010 @ 2:52pm
  
  Re:
  You can get American "Smarties" in Canada, They are called Rockets. Same thing just a different name.
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- Joe, 9 Jun 2010 @ 3:13pm
  
  Re:
  saw that, but different name, different package, just doesn't feel right. i want to see a smarties package and say - what the hell is this?
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- Colin, 9 Jun 2010 @ 3:36pm
  
  Re:
  They (Ce De Smarties) are called rockets in Canada.
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Darryl, 9 Jun 2010 @ 2:33pm

Youre smarties SUCK, our's melt in the mouth.
MMMMM Smarties !!!!

You're Smarties SUCK !!!

Whereas our's just melts in the mouth.
And they are much like M&M which we also have, shaped like a lens.

And I would have to question the 1982 date for "the real" smarties, im sure it was much earlier than that, I remember eating them as a young kid, not just discovering Smarties in 1982 by that time I was serving in the miliary.

US in general does not like as rich and sugary confectionary that europe and Australia. Often people who travel here from the US comment about just HOW sweet our lollies are :).

And our beer is stronger, and our pot is higher quality, nicer looking girls, better beaches and the good type of smarties LOL
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- Stuart, 9 Jun 2010 @ 2:48pm
  
  Re: Youre smarties SUCK, our's melt in the mouth.
  While your smarties might be better than ours and your beer stronger. Our women INVENTED hotness and our beaches rock.
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  - Pickle Monger (profile), 9 Jun 2010 @ 3:02pm
    
    Re: Re: Youre smarties SUCK, our's melt in the mouth.
    That would be French women, parbleu!
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  - Astaroth, 19 Nov 2013 @ 5:14pm
    
    Re: Re: Youre smarties SUCK, our's melt in the mouth.
    Don't like the sound of your rock beaches ... much prefer the sandy variety. Smarties were originally made by Rowntrees of York in the 19th century, but were ariginally marketed as sugar coated chocolate beans. Name was eventually changed to Smarties somewhere around 1930s, and Rowntrees were taken over by Nestles about 50 years later ... so now they're not even made in the UK any more ... Germany mostly. Doesn't seem to matter who wins the war, it's winning the peace which counts!
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- VoicesInMyHead (profile), 9 Jun 2010 @ 2:50pm
  
  Re: Youre smarties SUCK, our's melt in the mouth.
  And I would have to question the 1982 date for "the real" smarties...
  
  1882
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- Thomas (profile), 9 Jun 2010 @ 3:35pm
  
  Re: Youre smarties SUCK, our's melt in the mouth.
  "You're Smarties SUCK !!!
  
  Whereas our's just melts in the mouth."
  
  You are Smarties SUCK !!!
  
  Whereas our is just melts in the mouth.
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- Angela, 9 Jun 2010 @ 5:09pm
  
  Re: Youre smarties SUCK, our's melt in the mouth.
  oh hush, now you're just being ugly. be nice.
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- Anonymous Coward, 9 Jun 2010 @ 6:28pm
  
  Re: Youre smarties SUCK, our's melt in the mouth.
  "And our beer is stronger, and our pot is higher quality"
  
  Must be ... because here you're = you are
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- Keith, 9 Jun 2010 @ 7:15pm
  
  Re: Youre smarties SUCK, our's melt in the mouth.
  Hey dumbass put down your bong and read. It says 1882.
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PaulT (profile), 9 Jun 2010 @ 2:57pm

I must admit that the first time I came across M&Ms, I thought "so, they're Smarties with a letter painted on them? Meh" (though I love the peanut ones).

Actually, according to Wikipedia, M&Ms weren't introduced in the US till 1941, plenty of time for someone to have gone over to Europe and nick the idea from Rowntree's (the original company before they were bought by Nestle). I wonder if they did?
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- Anonymous Coward, 9 Jun 2010 @ 3:18pm
  
  Re:
  it's only the internet, but the first section of this shines some light
  
  http://www.chocablog.com/reviews/peanut-mms/
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The Devil's Coachman (profile), 9 Jun 2010 @ 3:04pm

Gawd! More stupid lawyer tricks! Kill them all, now.
You'd think this matter would have been anticipated and settled years ago, but no, some turdball with a law degree and a deep larcenous streak decides to pursue crap like this on an adversarial, fee for service basis, instead of negotiating a mutually agreeable settlement. I think all the lawyers in the world should be jammed into Deepwater Horizon wellhead. They're all so full of crap that there's no chance it wouldn't stop the spill. It's gotten to the point that if someone I just met tells me they're a lawyer, I would have no choice but to shoot them dead before they sue me out of existence, I think the title of the play by Charles Ludlam "Turds in Hell" most accurately describes these subhuman vermin. We're in hell, and they're all turds - a self perpetuating cycle with no end.
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- BearGriz72 (profile), 10 Jun 2010 @ 1:26am
  
  Re: Gawd! More stupid lawyer tricks! Kill them all, now.
  I Agree
  "The first thing we do, let's kill all the lawyers"
  William Shakespeare, King Henry VI Part 2 - Act IV, Scene II (Dick the butcher)
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Pickle Monger (profile), 9 Jun 2010 @ 3:29pm

Trademark infringement
This situation is hardly unique. Anheuser-Busch can only advertise/brand Budweiser beer in Europe as Bud. I think Ce De Candy do have a legitimate issue since Nestlé's "Smarties" are not available for sale in USA through the brick-and-moretar stores. So all Amazon would need to do is not to sell the candy to the US customers.
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- Etch, 9 Jun 2010 @ 6:24pm
  
  Re: Trademark infringement
  That's still a ridiculous rule. Do you know how complicated it already is for eBay and Amazon to be global sellers and have to observe all the different legal issues surrounding each product for each country? I worked for eBay Canada and I remember all the ridiculous legal issues we would run into, and how complicated the whole thing was. I remember one particular issue with Swiss Knives, eBay got into lot of legal trouble because one of it sellers sold swiss knives to US & Canada while someone else held the patent for the swiss name, but they weren't even knives, it was something completely unrelated (can't remember exactly what they did). But as a result, we had to cancel all their auctions.
  
  It seems ridiculous that something as silly as a name conflict would ban a product from being sold altogether in a country. Its clear abuse of copyright and patent laws, but unfortunately a perfectly legal one.
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Confuddled, 9 Jun 2010 @ 3:36pm

Sounds like an Identity Crisis.
Does that mean that the real Smarties stop being "Smarties" when they enter the USA? Do they cease to exist? Does the name on the box change? Aren't I still buying a product named "Smarties?"
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- Shock Horror, 15 Jun 2010 @ 10:26am
  
  Re: Sounds like an Identity Crisis.
  The Canadian style of Smarties, with the chocolate on the inside and the pastel sugar crust cease to exist on the American side. All you get is those souless M&Ms. If I'd known this before I moved things might have been different.
  
  To be tossed a weak sizzler like the American Smarties is just...a cruel joke.
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Anonymous Coward, 9 Jun 2010 @ 3:57pm

Another reason to hate Nestle
Aside from winning the "Black Planet Award" for raping the Earth, yet one more reason to avoid Nestle: for attacking the only authentic Smarties, still made in my home town of Union, NJ.
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- Supergluuued (profile), 9 Jun 2010 @ 5:15pm
  
  Re: Another reason to hate Nestle
  ummm. I think you're confused.
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- huh, 9 Jun 2010 @ 5:18pm
  
  Re: Another reason to hate Nestle
  Did you even read the article, smarties from the rest of the world 1882, the American smartie 1942. trolls...
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Jon Renaut (profile), 9 Jun 2010 @ 4:29pm

Now I want some foreign Smarties
I had no idea there was a different kind of Smarties outside the US. You can get the chocolate ones on Amazon, but only 24 packs for $43. I'm not spending that much just to satisfy my curiosity.

Next time I'm in a country that has the chocolate Smarties, I'm going to give my money to Nestle. Nice job, Ce De Candy.
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- Killer_Tofu (profile), 10 Jun 2010 @ 6:12am
  
  Re: Now I want some foreign Smarties
  Don't waste your time. M&Ms are better (imho).
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Nelson Cruz (profile), 9 Jun 2010 @ 5:18pm

How did they get the trademark?
How did Ce De Candy got the "Smarties" trademark in 1942 in the US, if Nestlé was making Smarties since 1882? International trademarks dont count???
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- Willton, 9 Jun 2010 @ 5:30pm
  
  Re: How did they get the trademark?
  How did Ce De Candy got the "Smarties" trademark in 1942 in the US, if Nestlé was making Smarties since 1882? International trademarks dont count???
  
  Trademarks are territorial. Just because Nestle uses "Smarties" in Europe does not mean it has rights to "Smarties" in the States. Trademark rights are tied to use, and if you don't use a mark in a particular country, you don't have rights to that mark in that particular country.
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  - TtfnJohn (profile), 10 Jun 2010 @ 11:37am
    
    Re: Re: How did they get the trademark?
    The Nestle/Rowntree Smarties are sold in just about every country BUT the United States. I have no idea why.
    
    Still, Smarties beat the heck out of M&Ms, come in easily opened boxed rather than impossible to open plastic bags and, should you really need a sugar fix you just open the box, opn your mouth and pour.
    
    Many a Canadian child's under aged practise for the fine art of chugging beer. Real beer mind you, not that funny stuff sold south of the border! ;)
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Karen in Wichita, 9 Jun 2010 @ 6:24pm

I may be misremembering...
... but I'm pretty sure you can get Nestle Smarties at Cost Plus/World Market. That is to say, I *know* you can, and I don't remember them being named something different (unlike Tim Tams, which *are* renamed, and which are way better than the weak-sauce Pepperidge Farm ones that actually bear the name).

Of course, maybe all that means is that Ce De is going after them next. But I, for one, was not confused at all.
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- G Thompson (profile), 9 Jun 2010 @ 8:01pm
  
  Re: I may be misremembering...
  What? They rename Tim-Tams??? OMG OMG OMG!!!! Blasphemy!!!
  
  TimTams are just Ambrosia Chocolate Biscuits for Gods! [Then again biscuits in the USA are just plain weird]
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Craig (profile), 9 Jun 2010 @ 9:36pm

Rockets 'n' Smarties
I love Rockets, but had no idea that they were called 'Smarties' by our friends and neighbours in the US. Smarties taste different than M&Ms, even though they are so similar. I have no idea why; they just do. I love 'em both.

Anybody remember this:

"When you eat your Smarties
do you eat the red ones last?
Do you suck them very slowly
or crunch them very fast?
Eat that candy-coated chocolate
but tell me when I ask -
When you eat your Smarties,
do you eat the red ones last?"

Here's to chocolate and friendships! Borders mean nothing when you enjoy something so sweet and fun with your friends and family. :)
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- Niall (profile), 10 Jun 2010 @ 4:38am
  
  Re: Rockets 'n' Smarties
  'Fraid it's the orange ones last. Although the blue ones do funky things to your tongue.
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- dave, 10 Jun 2010 @ 7:46am
  
  Re: Rockets 'n' Smarties
  no i eat the blue ones last
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- TtfnJohn (profile), 10 Jun 2010 @ 11:39am
  
  Re: Rockets 'n' Smarties
  That's a classic ad that appears and reappears about once every decade.
  
  It may be the only heavy rotation ad that I haven't sickened of over the years cause it's so well made, cute and bouncy. The English accent is nice too!
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TesserId (profile), 10 Jun 2010 @ 5:37am

Not pure sugar, as that would be better for your teeth. The Ce De Smarties are almost as tart as SweeTarts, which means that they have gobs of enamel eating acid. My teeth ache just thinking of their lip puckering tartness, and yet I crave them still. And, I like the non-Ce De Smarties as well, but not at the same time.
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Tamara, 10 Jun 2010 @ 5:43am

Smarties aren't as good as M&Ms
M&M's taste so much better than Smarties. M&M's are available in a host of different types (standard, peanut, crunchy, mint, etc.), Smarties just standard. Smarties only have 1 small line of both their sizes, M&M's 5 of each (so therefore sell so much more). You're not missing much if Amazon can't sell them.
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Hannah Miller, 20 Sep 2010 @ 6:18pm

A Canadian Opinion
The US deserves to be deprived of Smarties.
Just once, YOU'RE being told "fuck you", instead of Canada.
Don't know what I'm talking about?
How about YouTube: "This video contains content from WMG, who has blocked it in your country on copyright grounds."
Or Hulu: "Sorry, currently our video library can only be streamed from within the United States"
Or Last.fm "Just a reminder, your free trial of Last.fm Radio will end after you’ve played 30 tracks. Enjoying it? Subscribe for only $3.00/month"
Stop your goddamned whining and deal with it. It's YOUR turn to get fucked in the ass.
Enjoy the same treatment we've had for years.
As they'd say in your South: Fuck ya'll. >:D
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