Yellow tops and labels

It’s not exactly front page news, but over at news.com.au they have a short video explaining the battle between Kraft and Bega over who can market peanut butter in that yellow get-up. This follows news that Kraft has applied for special leave to appeal the dismissal of its complaint.

A Current Affair also has a go with a lot more flag waving and some gruesome finger dipping.

If you’re looking for the more formal legal analysis, the Full court decision is here.

So far, the moral of the story is that an unregistered trade mark is not property in its own right. Such a “thing” can be assigned only as part of the transfer of the goodwill of a business as a going concern. If you are going to sell your business, or its assets, but you don’t want to the purchaser to use an unregistered name, or get-up, after the sale, you will need to impose appropriate contractual restraints.

Kraft Foods Group Brands LLC v Bega Cheese Limited [2020] FCAFC 65 (special leave application pending)

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