December 2009
It's All Balls In.............. Australia
Mars Australia has failed to prevent Sweet Rewards from selling its chocolate coated malt ball product under the name ‘Malt Balls’. Mars alleged the name and packaging was too similar to its own distinctive Malteser’s products. Mars claimed trade mark infringement, passing off and misleading and deceptive conduct in contravention of the Trade Practices Act.
The Federal Court dismissed Mars' claim on the basis that in the mind of a reasonable consumer the Malt Balls packaging did not suggest a connection with Maltesers or Mars. Key differentiating factors in the Malt Balls packaging were – use of a different shade or red, a prominent Delifi logo used on the Malt Balls product, the format of the Malta Balls logo which differed significantly from the appearance of the Malteses logo. In addition the Court dismissed Mars’ claim that Sweet Rewards had intentionally tried to misappropriate Mars goodwill and reputation.
BRIFFA Comment
The fact that Maltesers is such a well known mark made it harder for Mars to succeed here. While at first glance it seems that Mars is the victim if its own success – the judgment could also be seen as sensible. Intellectual property rights are granted to prevent unfair misappropriation of goodwill. They do not extend to preventing legitimate competition. Sweet Dream’s Malt Balls do not appear to be on sale in the UK yet. When they are.. happy munching.