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Whittaker's wins court case over chocolate

Last updated 05:00 29/04/2014

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Whittaker's has triumphed over Cadbury in a stoush over what they can name their mixed berry chocolate offerings.

The win comes after chocolate giant Cadbury tried to block Porirua-based Whittaker's from using the name "Berry Forest" on a chocolate bar, saying it would be confusingly similar to its own "Black Forest" blocks.

Cadbury UK Ltd argued "Black Forest" should stand alone and J H Whittaker and Sons trademarking "Berry Forest" might deceive the sweet-toothed consumer, especially those who buy casually or impulsively.

Whittaker's does not sell a "Berry Forest" chocolate, but a High Court judge said it appeared - although it was unconfirmed - that Whittaker's intended using the name for what was currently called "Berry and Biscuit".

Cadbury says Black Forest is one of its top lines with a substantial reputation. The Berry Forest name was similar enough to risk confusion, it said.

Whittaker's said the words "black" and "berry" were readily distinguishable in look, sound and idea, especially because black is a colour and berry is a fruit.

In a decision issued from the High Court at Wellington, Justice Rachel Dunningham said she compared the two marks and preferred Whittaker's submission that, despite the similarities, Black Forest brought to mind the flavour and ingredients of a Black Forest gateau originally from Germany.

Berry Forest invoked a combination of berries, the judge said. She was satisfied the words Berry Forest were unlikely to deceive or confuse a "substantial number of the general public".

Black Forest is Cadbury Dairy Milk with small pieces of cherry-flavoured jelly and chocolate biscuit pieces.

Whittaker's Berry & Biscuit has biscuit pieces with fruit including strawberries, raspberries, blackcurrants and cherries.

A trademark is a word, words, or symbol, that is able to be legally registered to represent a company or product.

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- The Dominion Post

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