Mars Australia Pty Limited owns Whiskas, the pet food brand. Earlier this year, their efforts to trade mark a particular shade of purple was challenged by Société des Produits Nestlé. Although the Trade Marks Office accepted the application for registration (after some resistance), Nestlé filed an 'Opposition' and the Delegate of the Registrar of Trade Marks found in favour of Nestlé.

The matter then went to the Federal Court. The point I find very interesting is that Mars faced accusations of providing untrue evidence to the Trade Marks Office, at the time when the trade mark was accepted for registration. They had claimed that purple was not used by other manufacturers of pet food in Australia. Nestlé was able to show that at the time of its Opposition proceedings purple was used by a range of pet food traders including Coles Dog Treats and Lovitt's Ripper Treats. Fortunately for Mars, the judge accepted that it could not be concluded that the application had been approved on the basis of their false representation.

Mars almost lost this case. It just goes to show how critical it is to make sure your evidence is always accurate and consistent at every stage of the trade marking process. It will save you a headache, at the very least.

You can read the full case details here:

Mars Australia Pty Ltd (formerly Effem Foods Pty Ltd) v Société des Produits Nestlé  SA [2010] FCA 639 (22 June 2010)

Don't you hate it when you believe you're in the right, but it turns out otherwise?

One of my clients recently contacted me, outraged that a rival pest controller was not only invading his territory, but also blatantly copying his brand and leveraging off my client's hard-earned reputation.

Imagine my client's shock when our searches of business records proved that the 'offending' pest controller had in fact introduced their brand first. So who was leveraging off whom?

Be aware that these things can happen. That's why CG Lawyers recommends a thorough set of relevant searches before committing a client to any particular course of legal action.

Not everyone is aware of the significance of these two trade mark-related symbols. So here is a quick rundown FYI.

The ™ symbol next to a logo informs the world that you claim common law trade mark rights in your brand. Other businesses should see this as a warning that should they copy it in any way, they might have a messy fight on their hands. You will have seen the symbol used on letterheads, on business cards and on websites prior to trade mark registration approval.

Once your trade mark is registered (but never before) you can use the ® symbol next to your logo wherever it appears. This indicates that you have approved rights in your logo, and that you can quite easily prove breach of your rights should anyone copy it.

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