Kiwi Munchies Pty Ltd v Kraft Foods Holdings, Inc

Kiwi Munchies Pty Ltd (the applicant) sought to register the trade mark "Kiwi Munchies" in class 30 for confectionery. Kraft Foods Holdings, Inc (the opponent) opposed the registration on the grounds of likely confusion with its registered trade mark "Smarties" in class 30 for confectionery, and that the applicant's mark was deceptive or misleading. The matter came before the Registrar of Trade Marks, whose decision was then appealed to the Federal Court of Australia.

The primary legal issue before the Federal Court was whether the Registrar erred in finding that there was a likelihood of confusion between the applicant's proposed mark "Kiwi Munchies" and the opponent's registered mark "Smarties" for confectionery products. This involved an assessment of the degree of similarity between the marks, the similarity of the goods, and the relevant purchasing public. A secondary issue concerned whether the applicant's mark was likely to deceive or mislead the public as to the nature, quality, or origin of the goods.

Justice Terry Williams applied the established principles for assessing trade mark infringement and opposition, particularly the "imperfect recollection" test and the consideration of the overall commercial impression of the marks. His Honour found that while the marks were not identical, there was a degree of visual and phonetic similarity, and crucially, the goods were identical. The court considered the potential for consumers to associate "Kiwi Munchies" with "Smarties" due to shared characteristics and the possibility of a trade connection. The deceptive or misleading aspect was also considered in light of the potential for confusion.

The appeal was dismissed, with the court upholding the Registrar's decision that the registration of "Kiwi Munchies" should be refused due to the likelihood of confusion with the "Smarties" trade mark.