It was held recently that the well know confectionary producers Mars have become a ‘victim of its own success’ leading to a claim for Passing Off being rejected.
Mars (Australia Pty Ltd) brought an application against Sweet Rewards Pty over the use of the term ‘Malt Balls’ (and associated getup) on a product containing identical goods to that of the famous Maltesers.
Mars alleged passing off and misleading and deceptive conduct and the matter was dismissed by Perram J.
It was held that given the reputation of the Maltesers product the consumer would not be led to believe that the products were connected. It stands therefore that the success of Mars has in some respects dented its ability to stop others from selling similar products. It was also held that even without this, the terms Maltesers and Malt Balls would not be seen as confusingly similar given the generic nature of the latter.