SYDNEY—Nobody sampled the wares in the Federal Court on Monday, but the three judges were shown a packet of Maltesers and a jar of Malt Balls.
David Catterns QC, for Mars, manufacturer and distributor of the famous Maltesers confectionery, brandished the items as he challenged the dismissal of its trademark infringement claim.
Earlier this year, Justice Nye Perram dismissed the claim against Sweet Rewards, which imports and sells Malt Balls through discount stores such as Target and Kmart.
The judge also threw out Mars's claim that Sweet Rewards had engaged in "passing off", misleading and deceptive conduct.
In finding it unlikely a consumer could mistakenly think a chocolate ball not referred to as a Malteser was a Malteser, he said "in that sense, Mars is a victim of its own success".
But Mr Catterns said: "This sends a shiver, with respect, down the spines of the owners of powerful trademarks."
The very strength of their trademark appeared to be a disadvantage, he said.
Holding up the two products, he said both labels were red, both products showed a picture of the confectionery, and both showed at least one sweet cut in half.
"It is clear they are close enough for confusion," he said.
But Noel Hutley SC, for Sweet Rewards - which uses a "Delfi" brand logo on its Malt Balls jar - referred to aspects of the "confectionery cliche" used in the industry.
The colour red was "ubiquitous" in confectionery packaging and was used in a string of products including Kit Kats, Jaffas, Cherry Ripes and Picnics.
Using a picture of the product and a "cut through" picture, showing the inside of the product, also was common, he said.
Mr Hutley said the principal element of Maltesers was its name, while the balance of its "mark" was commonplace.
"No basis has been established to upset His Honour's conclusion," he said.
Justices Arthur Emmett, Annabelle Bennett and Richard Edmonds reserved their decision to an unspecified date.
