Courts rule on chocolate rabbits and malt balls
In the cut-throat world of confectionery, innovation is crucial. When a company hits on a best-seller, it makes sense to protect it with a trademark. But simply obtaining the trademark may not be enough to keep competition at bay – and companies may even become the victims of their own success.
All in a name
Mars’ complaint against a product called Malt Balls has been rejected by Australia’s federal court, which ruled that Maltesers are so famous that there is no danger of consumers confusing the two.
The confectionery giant claimed that Australian importer and distributor Sweet Rewards was infringing its trademarks and contravening the Trade Practices Act.
Both Maltesers and Malt Balls come in red packaging that bears an image of floating chocolate-covered balls. But while Maltesers are sold in pouches, Malt Balls come in jars; moreover, the shade of red differs.
But the crucial difference for the judge was that Malt Balls do not use the word ‘Maltesters’.
“It is highly unlikely that any ordinary consumer of chocolate confectionery could mistake something which is not called a Malteser for a Malteser,” he said.
Rabbit wars
Meanwhile, the European Court of Justice has handed back to Austria a long-running dispute between Lindt and Sprungli, maker of gold-wrapped Easter bunnies since the 1950s, and Hauswirth.
Lindt trademarked its design in 2001 and in 2004 took action against Hauswirth, claiming that its rival bunny was an infringement. Hauswirth, meanwhile, questioned whether the Lindt trademark is valid as chocolate rabbits have been on the market for several decades.
The Austrian Supreme Court referred the matter to the ECJ for guidance.
The ECJ said this month that the matter hinges on whether a company knew others were producing similar products at the time it applied for a trademark. It is now for the Austrian courts to decide if Lindt’s trademark was obtained in bad faith.
