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Mars Seeks Reversal of Trademark Infringement Decision
Mars, the manufacturer of Maltesers, is seeking to overturn an Australian court decision dismissing its application for trademark infringement against Sweet Rewards, the importer and distributor of a rival product, Malt Balls.
Last June, the Federal Court of Australia dismissed Mars’ claims and held that Sweet Rewards did not infringe Mars’ Maltesers packaging nor engaged in passing off, misleading or deceptive conduct. In deciding that no trademark infringement took place, the Federal Court took note of the fact that Maltesers are very well known in Australia, having been in the market for more than 50 years. In addition, there are marked differences between the packaging of the two products. Therefore, the Federal Court held that it is highly unlikely that an ordinary consumer of confectionary products would confuse the two. “In that sense, Mars is a victim of its own success,” the Federal Court added.
Mars is currently appealing the decision before a three-member appeals court. During a recent hearing, Mars’ counsel said that the Federal Court’s decision “sends a shiver down ... the spines of the owners of powerful trademarks.” He also said that the strength of the Maltesers brand appeared to disadvantage his client.
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