Sweet Justice?

Shaw Industries sued Hershey on February 5, 2013, seeking a declaration that Shaw's two decades of use of "chocolate kiss" as the name for the color carpets it sells does not infringe Hershey's rights. See Shaw Industries Group, Inc. v The Hershey Company, 4:13-cv-00027-HLM (N.D.Ga). According to the complaint, Hershey first contacted Shaw about the chocolate kiss color on December 19, 2012. Even after Shaw told Hershey on January 11, 2013, that it was dropping the chocolate kiss color later in 2013, but Hershey continued to threaten Shaw in a January 24, 2013 letter, and Shaw sued to resolve Hershey's claims.
This case illustrates the tension between IP rights holders and the public domain. How should someone describe the color of a carpet that is the color of a chocolate kiss? Even if "chocolate kiss" colored carpeting calls Hershey's to mind, is the descriptive use of chocolate kiss an infringement? Goaded by fears that the failure to take action will result in a diminution of rights, and driven to recover every shred of value from any reference to its mark, trademark owner's complain about every reference to their marks. The result is less colorful speech (literally), and an impairment of our ability to communicate.