In Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCAFC 174 the Federal Court of Australia Full Court rejected claims by the manufacturer of Maltesers against the manufacturers of malt balls that were sold in jars in supermarkets and discount stores that it represented to consumers and traders that its product is associated with or has the endorsement, approval, sponsorship or licence of Mars.

The Full Court held that the primary judge was not in error in concluding that the Sweet Rewards label, considered as a whole, was not deceptively similar to the trade marks and did not pass off the goods to which it was affixed as Maltesers or otherwise a Mars product. There was no misleading or deceptive representation made by the use of its label by Sweet Rewards.

The Full Court said:

27 The words “Malt Balls” are descriptive of the Sweet Rewards product and were accepted in the evidence as an accurate description. The style in which those words are written, being a cursive style on a diagonal angle from bottom left to top right, similar to the way the word “Maltesers” is written on the Mars product, does not change this conclusion.

28 Neither the words “Malt Balls”, the red colour nor the depiction of the product in the whole and in cut through are used as a trade mark by Sweet Rewards. They are not used to distinguish the malt balls as the goods of Sweet Rewards, nor do they represent that the goods are Maltesers, that they are equivalent to Maltesers or that they are otherwise the goods of Mars…