Kraft’s application for leave to appeal refused by High Court

On 13 November 2020, the High Court refused Kraft’s application for leave to appeal from the Federal Court’s decision in relation to the “peanut butter trade dress“. This leaves Australian law in relation to unregistered marks in a very sorry state, which will be of concern to brand owners who license their marks to Australian manufacturers.

One important impact of the decision is that goodwill generated through use of an unregistered mark will be owned by the manufacturer of the goods on which the mark appears, not the entity which controls or licenses that manufacturer. This flies in the face of the proposition that a trade mark is a “badge of origin”. The case is also a stark warning to brand owners and their licensees who refer to products made by a former licensee on labels or in advertising, using tag lines such as “Loved Since 1935”.