Updated: Mallesons has published an alert giving further analysis of the decision – available here.
The Federal Court has dismissed a case brought by well-known confectionary company Mars against an Australian confectionary importer, Sweet Rewards. Mars had complained about the packaging of a chocolate coated malt ball product known as “Malt Balls”, which it alleged was too similar to the packaging of its popular Maltesers products. We acted for Sweet Rewards in this litigation.
Justice Perram dismissed Mars’ application, which was based on trade mark infringement, passing off, and misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act, and awarded costs to Sweet Rewards.
His Honour found that the principal element of the Maltesers get-up was the name “Maltesers”, which was not part of the Malt Balls packaging. Therefore, it was highly unlikely that any ordinary consumer of chocolate confectionary would mistake something not called a Malteser for a Malteser.
More to follow upon further analysis of the decision… now available here.