The High Court of Australia has refused Kraft’s application for special leave to appeal the Full Court of the Federal Court of Australia’s decision in Kraft Foods Group Brands LLC v Bega Cheese Ltd concerning Bega’s use of the peanut butter trade dress. Kraft’s application was dismissed with costs.
As discussed in The Battle Over Peanut Butter Trade Dress, the Full Court’s decision found that when Bega acquired Kraft’s peanut butter business (including the assets and goodwill), this included the rights in the unregistered trade dress being “a jar with a yellow lid and a yellow label with a blue or red peanut device, with the jar having a brown appearance when filled”. This decision, and the High Court’s decision not to grant Kraft special leave to appeal, reinforces the position that in Australia an unregistered trade mark cannot be assigned separate from the business which holds the related goodwill.
The High Court’s decision to dismiss Kraft’s application is not surprising. The Full Court’s decision cited the following two “uncontroversial” underlying principles of Australian law: