EUROPE, MIDDLE EAST & AFRICA: SWEDEN
KRAFT SWEDEN MAKER OF M SUES MARS SWEDEN OVER M&M NAME USE IN SWEDEN
Authors: Michael Plogell & Henrik Svensson, Wistrand Advokatbyrå
A Swedish Kraft Foods company sued Mars Sweden and claimed that Mars, when marketing certain products, should be prohibited from using packaging dominated by the letter M. The products in question are chocolate covered peanuts.
Since 1957, Kraft has marketed its product under the trademark M. Since 1941, Mars has marketed its product M&M's, which was introduced to the Swedish market in 2009.
Kraft claimed that its product M was very well known and well reputed in the Swedish market and that the packaging of M&M's was designed in order to imitate the packaging of M. Kraft further claimed that M's packaging was well known, distinctive and that Mars by using similar packaging for M&M's used the reputation of M's in an improper manner.
Mars responded that M&M's is the original product which Kraft has copied, and that the case concerned the copy suing the original. Mars inter alia also argued that it had marketed M&M's in a consequent manner since 1941, that the packaging for M was not well known in the Swedish market, not distinctive, and since M&M's carried a better reputation it could not improperly use the reputation of M.
The Swedish Marketing Court (the "MD") concluded that the packaging of M was distinctive and well known in the Swedish market. The MD also concluded that the appearance of the packaging of M and M&M's respectively were so different that there was no risk of confusion. Furthermore the MD concluded that the packaging of M&M's could not be viewed as being closely affiliated and associated with the packaging of M. Neither could the packaging of M, in relation to the packaging of M&M's, be seen to be the bearer of such attention-value which is a presupposition for improper use of another product's reputation to be at hand. Kraft's claims were dismissed.