Court rules for Twisties in cheesy confusion case Sharon Givoni
THEY look like Twisties, taste like Twisties, sound like Twisties but, would you confuse Cheezy Twists with Twisties?
The Federal Court found the Australian registered trademark Twisties was infringed because a competitor’s mark sounded deceptively similar (Frito-Lay Trading Co GmbH v Aldi Stores Ltd).
From around January 2001, discount supermarket chain Aldi Stores sold a cereal-based, cheese-flavoured snack food called Cheezy Twists.
Frito-Lay alleged the use of the name Cheezy Twists infringed its trade mark registration for Twisties (see right).
The judge agreed Cheezy Twists sounded so similar to Twisties that it was likely to deceive or cause confusion. This aural similarity meant it was irrelevant the font and layout of the the pack were dissimilar.
The judge also considered that, given the Twisties brand was so well-known in Australia, it was clear that in using the trademark Cheezy Twists, Aldi was attempting to take advantage of the successful Twisties name.
Food manufacturers should bear this decision in mind when choosing product names.
Distinguishing the look of your trademark from a competitor’s may not be enough to prevent trademark infringement if the brand names sound deceptively similar and could result in consumer confusion.
This appears to be particularly true if a business attempts to reproduce a competitor’s product and packaging closely.
