iSnack2.0 or “Frank”?

Dean Robbins is the winner of Vegemite’s ‘Name Me’ competition. The new, creamier blend of Vegemite and Kraft cream cheese will be known as iSnack2.0, bringing together Dean’s love of technology and Vegemite.

There were 35,074 entries, of which 16,071 were unique. The – errr – funniest entries according to Kraft were Cheesewax, Goo-dy, Frank, Brownie and Crackermite.

This is a great example of a campaign which has created lots of buzz, not to mention controversy surrounding the selection of the winning entry. No doubt it will become a national sport trying to second guess why the winner beat the other 35,073 entrants.

Interestingly, Kraft decided to proceed even though its new name is potentially blocked by an existing trade mark registration for “iSnack”. Breville already has a trade mark for that name (TM 836057;22 May 2000) in class 11 for cooking apparatus including snack makers and sandwich toasters.

Whilst there is already speculation that Breville might have a ready-made court case for trade mark infringement, it is worth remembering that wheeling and dealing commonly takes place behind the scenes between conflicting trade mark owners. Perhaps Breville has consented to Kraft’s use of the name.

Alternatively, Kraft might have assessed its legal risk and decided to proceed with iSnack2.0 without registered trade mark rights.

The main advantage of registering a trade mark is that reputation in the mark is presumed by the existence of that mark on the register. However, it’s not the end of the world if this does not happen. Kraft’s big, successful launch of the iSnack2.0 product means it already has a swathe of evidence showing a burgeoning reputation in the trade mark. So long as it retains and records this evidence, it could rely on common law rights (passing off) or section 52 of the Trade Practices Act (Cth) to support claims against infringers.

Equally, Kraft will need to take care it does not tread onto the toes of others. Of itself, iSnack2.0 is unlikely to cause any mistaken associations with Apple’s iPhone. However, an iSnack2.0 campaign featuring consumers wearing iPhones? That could cross into prohibited territory.

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