Australian Trade Marks Law Blog : Australian Trademarks Lawyer & Attorneys : Nicholas Weston Law Firm : Copyrights, Intellectual Property

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In Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCA 606   the applicant Mars Australia Pty Ltd (Mars) has manufactured, distributed, marketed and sold a bite-size confectionary called Maltesers in Australia since 1989. The respondent (Sweet Rewards) has imported, distributed and sold a chocolate covered confectionary product known as “Malt Balls” since about the middle of 2005, principally through Target (in orange jars) but also through and Kmart, Coles, Franklins, Priceline, BI-LO, IGA, Dimmeys and a number of other discount stores (in red jars). The word Maltesers does not appear on the Malt Balls packaging. They are delicious, make you fat and rot your teeth. If you are a film critic, you can hold them in your hand until slightly molten then hurl them at the movie screen. Or not. Anyway, the red jars and the Mars packaging looked like this:

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Facebook has announced that it will begin offering personalised username URLs to its users. On a first-come, first-served basis commencing 13 June, 2009 Facebook users are able to register personalised domain names such as www.facebook.com/yourname for their Facebook pages. Previously, a user’s Facebook URL was comprised of randomly assigned numbers.

Nicholas Weston, the law firm behind the Australian Trade Marks Law Blog comments that offering such services is a new potential opportunity for trade marks infringers and cyber-squatters. These procedures may be abused by reserving your – or your client's - trade marks as their username and thereby hold themselves out as being affiliated with the genuine trade mark owner. For example, any particular user might register www.facebook.com/yourtrademark.

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In a recent decision by a Delegate of the Registrar of Trade Marks (Opposition by Virgin Blue Airlines Pty Ltd to registration of trade mark application No. 980223) Virgin has been unsuccessful in its attempt to stop Qantas from registering as a trade mark the slogan ‘ALL DAY, EVERY DAY, LOW FARES’.

At a Hearing in Canberra on 19 January 2009 before Delegate, Bianca Irgand, Virgin Blue Airlines Pty Ltd (Virgin) pursued three grounds of opposition under the Trade Marks Act 1995 (the Act).

For ease of reference, the relevant trade marks are:

‘ALL DAY, EVERY DAY, LOW FARES’ (the Qantas mark)

‘EVERY DAY LOW FARES’ (the Virgin mark)