Anthony McGrath SC appeared for Bega in its successful claim against Kraft in the Federal Court of Australia over the rights to use distinctive yellow coloured packaging for peanut butter products. In the judgment given on 1 May 2019, O’Callaghan J found that Bega owned the rights to the yellow packaging as a result of acquiring the business (including its goodwill) from Mondelez in 2017 and that Kraft’s use of that packaging for its own peanut butter products was misleading and deceptive in breach of section 18 of the Australian Consumer Law and amounted to passing off of its products as having a connection with Bega’s products. The judgment contains an important explanation and acceptance of the principle that the assignment or licensing of an unregistered trade mark is not possible without the assignment of the underlying goodwill of the business using that trademark. Anthony McGrath SC was briefed by Justine Munsie and Hayden Martin of Addisons and led Craig Smith of Dever’s List. The full judgment is Kraft Foods Group Brands LLC v Bega Cheese Limited (No 8) [2019] FCA 593 and can be found here: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0593
