Vegemite iSnack 2.0

Kraft’s attempt to extend the Vegemite range has been attracting attention around the world.

Neil Wilkof considers what the impact from a trade mark or branding perspective was.

Dough Vo = no go

Arnott’s complained (e.g. here and here) that Krispy Kreme’s new dooughnut, the Dough Vo, infringed its trade mark for the Iced Vo Vo

You probably had those marshmallow and jam concoctions inflicted on you as a kid. But the trade mark, No 864, which is just for VO VO has been registered since 1906 for biscuits.

Krispy Kreme was reported in the press as saying it wasn’t going to back down – on legal advice, no less –

Arnott’s gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

However, Krispy Kreme Australia CEO John McGuigan said after taking legal advice, the company had decided to continue selling the Iced Dough-Vo.

Next thing we know, however, the headlines read “Dough-Vo bows to Vo-Vo” and “Krispy Kreme backs down on Vo-Vo boo-boo“.

One interesting question for trade mark students: to what extent can you look at what the Dough-Vo looks like when considering the trade mark infringement question? In this case, you probably get rather more latitude because the infringement would arise under s 120(2).

Another thing to worry about. How often do you see (or write in your letters):

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Has Mr Krispy Kreme just waived privilege in his legal advice?  Have a look e.g. at Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 esp. at [4], [10] and [32].

Lid dip: James McDougall for word of Krispy Kreme’s retreat.