The primary judge declared maltesers as “victims of their own success” in the case of Mars Australia Pty Ltd versus Sweet Rewards Pty Limited. The judge dismissed the allegations of “passing off, misleading and deceptive conduct, false representations and trademark infringement in the get up case against Sweets Rewards Pty Ltd an Australian confectionary importer and distributor of Malt Balls” (Wadlow,2008). The packaging of Malt Balls could be compared to Mar chocolate Maltesers as Mars emphasized this fact. As a result of the deceptive packaging, Mars claimed that the jars and labeling used by Sweet Rewards implied that a relationship exist between Malt Balls and Maltesers products. However, the court found no evidence on the part of the respondent to utilize Mars goodwill in its Maltesers products. It was evident that these products had been sold previously in packets or pouch packaging resembling Maltesers one in other discount stores. Such packaging showed parallel designs such as “floating chocolate balls”. The judge consequently noted that the Malt Ball jar had an additional term “delfi” which clearly distinguished it from the Maltesers packaging. In his final submission, the judge concluded that whereas the “floating malt balls” were identical to Maltesers floating balls, the similarity was not sufficient to cause public confusion. The trademark infringement claim was also dismissed on the basis that the public could not be confused about the source of each product. Maltesers products are well known due to being in existence in the Australian market for the last 55 years. This was ample time for consumers to distinguish the products and avoid confusion.
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According to Brennan (2009), the ruling in the Maltesers case was appropriate as it formed a precedent where courts will now give Australian consumers the credit for being able to differentiate between products. The case in which imitation of the appearance of goods has been restrained as passing off is very few. This case therefore conformed to existing laws and decisions and its reasoning was similar to other previous cases. In the case of Cheezy Twists vs. Twisties case of 2001, the respondent Aldi prevailed on its appeal to the federal court after being found guilty in the first instance for infringing Twisties trademark, owing to similarity to its brand, Cheezy Twists. The court stated that there was no deceptive similarity as it was fairly obvious that a typical Aldi customer would not have been misled. It is, however, important to clarify that the previous rulings do not form a precedent for anyone to copy the packaging of a well-known product and get away it. As a matter of fact, it was stated that according to the federal judge’s judgment, Live Wire’s energy drink violated Red Bull trademarks. The court justified its reasoning and interpretation of the law and did not omit any issue or argument. In its ruling, the court considered the principles laid down in the case of Crazy Ron’s Communication Pty Ltd v Mobile world Communications Pty Ltd. The court main focus was on the distinction between the two products. It was convinced that the general impression of Mar’s product “Maltesers” and “delfi” could not cause an overall confusion, and thus no infringement had occurred. The court also considered some principles from “Red Bull” case in regards to packaging. The policy implications of the case are enormous.
Traders can learn the importance of product and get up protection and registration to avoid prospects of infringement claims. Companies should also be vigilant on their branding strategy and ought to review frequently in order to ensure its competitive edge in the market. The Maltesers case upholds a legal precedent where trade marks comprising the get up of a product have their place, but will not ultimately deliver success when there is no evidence of intention to copy, especially when an alternative product is used on the allegedly infringement claim.
Brennan, D. J. (2009). Australian Intellectual Property Law Journal. Melbourne, Australia: Lawbook Co.
Wadlow, C. (2008). The Law of passing off: Unfair competition by misrepresentation. New York, NY: Sweet & Maxwell.