Lollies, Luscious Lips and 'Use' of a Trade mark
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Recently the Federal Court handed down its decision in Nature’s Blend Pty Ltd v Nestlé Australia Pty Ltd, and found that Nestlé Australia Pty Ltd (Nestlé) did not infringe Nature’s Blend’s trade mark by using the expression ‘Luscious Lips’ on their packaging.
Nature’s Blend had applied to register ‘LUSCIOUS LIPS’ as a trade mark for confectionary. At about the same time Nestlé began to develop its range of ‘RETRO PARTY MIX’ lollies which had on the back of the package:“That’s Right! All your old favourites are back…Up to 7 lolly varieties including...yummy Honey flavoured Bears, totally freeeeekie Teeth, Luscious Lips…”
Nature’s Blend considered this to be trade mark infringement. Nestlé argued that the use of the phrase ‘Luscious Lips’ did not constitute “use as a trade mark”. They also argued that their use had been in good faith as it indicated a descriptive characteristic of the goods, and they had done so honestly and without any ulterior motive because they were not aware of Nature’s Blend’s trade mark.
The court agreed that Nestlé had not, in producing their packaging, used ‘Luscious Lips’ as a trade mark and that any use of the phrase as a trade mark was covered by the good faith defence.
The court considered whether the words ‘Luscious Lips’ could have appeared to consumers as possessing the character of a brand. The overall impression of the packaging was considered and the court held that consumers would have understood the source was Allen’s, and they would have also seen the well known Nestlé trade mark.
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