In a series of recent cases, Australian Courts have
substantially green lighted the possibility of selling visually
similar packaged products to those of Famous Brands.
In a first case, Mars Australia Pty Ltd v Sweet Rewards Pty Ltd
[2009] FCAFC, Sweet Rewards produced a similar product to the
famous Mars "Maltesers" (Trade Mark), which they called
"Malt Balls". The packaging was in a similar colour
scheme to the Maltesers packaging such that from a distance, the
two products were perhaps not distinguishable. Mars sued on a
number of grounds including passing off, unfair trade practices and
Trade Mark infringement. The full federal court rejected Mars on
all grounds.
In a second case Nutrientwater Pty Ltd v Baco Pty Ltd [2010] FCA
2, producing an obviously visually similar range of products was
again found to be an acceptable marketing strategy. In this case
both NutrientWater and Baco produced an "enhanced drinking
water" product. The visual colour scheme of the
