Mars loses Maltesers appeal case

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.

Mars’ initial complaint against a product called Malt Balls which is produced by Melbourne based company, Sweet Rewards, was thrown out of court in June this year.

The confectionery giant has alleged that the product was too similar to the packaging of its popular Maltesers products, and that the Australian importer and distributor was infringing its trademarks and contravening the Trade Practices Act.

And, in its appeal notice filed in June, Mars argued that the trial judge erred in placing excessive weight on the reputation that Mars had in the Maltesers trade mark.

However, Mars’ complaint was again rejected by the appeal judge today, who ruled that Maltesers are so famous that there is no danger of consumers confusing the two brands.

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 ‘Maltesers’.

Last year, chocolate-maker Cadbury was also the loser in an Australian court case over its claim to the copyright of the colour purple.

Cadbury took action to try to stop local rival Darrell Lea using purple for its packaging and advertising.