Bennett J has allowed Mars to proceed to register its “Whiskas purple” colour as a trade mark for pet food, following Nestlé’s withdrawal of its opposition.
Nicholas Weston has a helpful summary; note Mars’ deliberate emphasis of the colour as a trade mark.
Some Whiskas in the “wild“.
Mars Australia Pty Ltd (formerly Effem Foods Pty Ltd) v Société des Produits Nestlé SA  FCA 639 (with nice colour trade mark representation)
Julian Lee, in the Age yesterday, reported on the concerns of “marketers” about how hard Australian regulators are making it to register a shape as a trade mark, in the wake of:
- last month’s ruling by Sundberg J against Guylian’s sea-horse shaped chocolate; and
- the commencement of Nestle’s appeal against Aldi’s successful opposition to registration of the shape of a Kit Kat bar as a trade mark (BDW discussed the decision here, but the decision itself seems to be hiding on-line).
To digress for a moment from the “shape” issue – Mr Lee also reports that Cadbury and Darrell Lea have settled their long running litigation and Cadbury has secured registration of its trade mark for the colour purple.
Back to “shape” marks, you might have thought from the tenor of Mr Lee’s article that Australia is yet again embarking on anutochthonous experience, but it seems that the Europeans are playing hardball too; e.g. here and here.
On application by Darrell Lea, the Registrar suspended Darrell Lea’s oppositions to the registration of some purple trade mark applications by Cadbury purportedly pursuant to reg. 5.16.
Finkelstein J has now found that the Registrar does not have power to suspend oppositions indefinitely.
Given my involvement in matters purple, let me just refer you to Nicholas Weston’s consideration.
Darrell Lea Chocolate Shops Pty Ltd v Cadbury Limited  ATMO 6 (15 January 2008)
Cadbury UK Ltd v Registrar of Trade Marks  FCA 1126 (1 August 2008)