Dark Secret of Chocolates

THE DARK SECRET OF CHOCOLATES Forrest Gump was right. ‘Life is like a box of chocolates – you never know what you’re going to get!’ In the intellectual property game, this is especially true for the chocolate industry and big brand names such as Mars,... More

THE DARK SECRET OF CHOCOLATES Forrest Gump was right. ‘Life is like a box of chocolates – you never know what you’re going to get!’ In the intellectual property game, this is especially true for the chocolate industry and big brand names such as Mars, Cadbury and Sweet Rewards. Mars Australia, in Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCA 606 has recently filed an infringement suit alleging Sweet Reward’s packaging of its chocolate malt balls are confusing and misleading consumers. Mars has also claimed a passing off suit against Sweet Rewards. It also alleges infringement of two registered packaging trademarks for Maltesers. The claim was dismissed by both the Federal Court at first instance and soon after by the Full Federal Court. Perram J. of the Federal Court of Australia echoed a simple test, placing reliance upon consumer perception that it was “unlikely that an ordinary consumer of chocolate confectionery could mistake something, which is not called a Malt Less