In a series of recent cases, Australian Courts have substantially green lighted the possibility of selling visually similar packaged products to those of Famous Brands.
In a first case, Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCAFC, Sweet Rewards produced a similar product to the famous Mars "Maltesers" (Trade Mark), which they called "Malt Balls". The packaging was in a similar colour scheme to the Maltesers packaging such that from a distance, the two products were perhaps not distinguishable. Mars sued on a number of grounds including passing off, unfair trade practices and Trade Mark infringement. The full federal court rejected Mars on all grounds.
In a second case Nutrientwater Pty Ltd v Baco Pty Ltd [2010] FCA 2, producing an obviously visually similar range of products was again found to be an acceptable marketing strategy. In this case both NutrientWater and Baco produced an "enhanced drinking water" product. The visual colour scheme of the two ranges of products was again strikingly similar. The Federal Court again rejected any relief for either party.
As a result of the strong authority of these two cases, it is arguable that, through intelligent utilization of the psycho visual properties of the brain, the wily competitor has an almost free hand to trade off the back of the colour or packaging attributes of a competitor's products, unless cases of actual confusion on a side-by-side comparison can be shown. No doubt the wily competitor will be further emboldened by our Courts' reluctance to allow the market leader any relief.
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