Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (No. 2) [2009] FCA 899
MARS AUSTRALIA PTY LTD v SWEET REWARDS PTY LTD
NSD 883 of 2007
PERRAM J
18 AUGUST 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION NSD 883 of 2007
BETWEEN: MARS AUSTRALIA PTY LTD
Applicant
AND: SWEET REWARDS PTY LTD
Respondent
JUDGE: PERRAM J
DATE OF ORDER: 18 AUGUST 2009
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The applicant is to pay the respondent's costs on a party/party basis, except for those costs associated with the orange jar allegations and where the costs are to be paid on an indemnity basis. 2. Sweet Rewards is to pay a third of Mars' costs of the costs application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION NSD 883 of 2007
BETWEEN: MARS AUSTRALIA PTY LTD
Applicant
AND: SWEET REWARDS PTY LTD
Respondent
JUDGE: PERRAM J
DATE: 18 AUGUST 2009
PLACE: SYDNEY
REASONS FOR JUDGMENT
Introductions 1 The Applicant ("Mars") manufactures the well-known bite-size confectionary known as the Malteser. The Respondent ("Sweet Rewards") sold and distributed a similar bite-size confectionary known as a Malt Ball. Mars claimed that the Malt Balls packaging was apt to confuse consumers into thinking that Malt Balls were associated with Maltesers or tasted like them. A claim for trademark infringement was also made. 2 On 5 June 2009 I dismissed all of Mars' claims: Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCA 606. At the time I ordered Mars to pay Sweet Rewards' costs of the proceedings. Sweet Rewards now seeks that that cost order be vacated and in its stead that there be an order that the costs be borne by Mars on an indemnity basis. 3 The claim for that costs order is put on three separate bases.
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