"Good evening," the heavily mascaraed drag queen purred to the audience. "I'm the often imitated, never-duplicated Hershae Chocolatae."
Although the name is something of a gag, the Hershey Chocolate Company is taking it very seriously. In July, the candy manufacturer sent Chocolatae a letter threatening to sue the entertainer for trademark infringement.
The letter claimed that there was a likelihood that people would "confuse" the two brands. The company was also upset because it had heard that Chocolatae was going around claiming to be an heir to the Hershey fortune. (Hershey legal officials didn't return numerous phone calls seeking comment).
Chocolatae says the argument is ridiculous. "I'm not quite sure how someone can confuse a six-foot-tall black man in heels with a foil-wrapped candy," he says, tapping his long, curled fingernails on a tabletop. "Besides, my name is Her-shay, not Her-she."
Chocolatae, known for his unnatural flexibility and uncanny ability to imitate Macy Gray, started his career seven years ago as a stripper at a gay bar in Sandusky. On his first day, managers told the 19-year-old that he needed a stage name. He came up with Hershae, a play on his birth name, Hershon, and later expanded it to Hershae Chocolatae.
People responded to both the performer and the name. After the Toledo-based drag queen put up a website, he started getting calls from bars as far away as Detroit and Cincinnati.
But Chocolatae was careful to distinguish himself from the chocolate company -- even coming up with a patented response to people who mispronounced his name. "Honey, I'm not a candy bar," he'd say. "The only thing we have in common is that we're both dark and a little nutty."
After the letter arrived, Chocolatae considered changing his stage name to something less chocolatey. "I was thinking of something like Hershae Mocha Latte," he muses. But after a week of talking to fans and lawyers, Chocolatae decided not to give in. "I've worked very hard in the past seven years to put my name out there," he says.
The case shows how the internet is blurring trademark law. Twenty years ago, companies could only win trademark-infringement cases against businesses competing in the same field.
"I don't think anyone would confuse a chocolate company with an adult entertainer," says Raymond Ku, a Case Western Reserve University law professor who specializes in trademark law.
But the legal tide has turned. Today, companies market not only their products, but their names. People buy Nike not for the quality of cotton, but for what the "swoosh" symbol represents.
So lawyers for Hershey can argue that having a drag queen associated with their wholesome brand could dilute its value -- especially when Chocolatae's face and name are splashed all over the internet.
This isn't the first time the Hershey Company has lashed out against alleged trademark violations. The company is a year and a half into a copyright infringement suit against Milkdudz, a California company that sells clothes for nursing mothers.
Its owners, two stay-at-home moms, thought they were being clever when they came up with their company name. "Milk obviously refers to breast-feeding, and duds is a synonym for clothes," says Kiersten Wall, the company's co-founder.
But lawyers for Hershey didn't see it that way. They claimed that Milkdudz was unlawfully piggybacking on Hershey's brand. The suit heads to trial in two months.
"It's completely ridiculous," says Wall. "Look at the billions of dollars Hershey makes versus the no dollars I make. I'm definitely not impacting their sales at all."
For his part, in an attempt to avoid going to court, Hershae recently posted a message on his website, disavowing any connection to the chocolate company. "Hershae may be sweet, but she is not a candy, nor affiliated with any!" the message states.
The Hershey Company wasn't satisfied, last week sending a second cease-and-desist letter.
In response, Chocolatae encouraged 75 of his friends and fans to send letters to the candymaker, testifying that they had never heard the drag queen refer to himself as an "heir to the Hershey fortune."
In the meantime, Chocolatae is boycotting all Hershey products and encouraging her fans to do the same. "I'm thinking of throwing Snickers bars into the audience at the end of each performance."
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