Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (No. 2) [2009] FCA 899

Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (No. 2) [2009] FCA 899

Mars was not bound to accept either Calderbank offer due to the lack of sufficient compromise and reasonable grounds for rejection. However, the claim against Sweet Rewards regarding the orange jar was wholly unmeritorious and warranted indemnity costs to mark the Court’s disapprobation.

Parties
Applicant: Mars Australia Pty Ltd; Respondent: Sweet Rewards Pty Ltd
Jurisdiction
Australia
Judgment Date
18 August 2009
Procedural Posture
Costs Application Following Dismissal of Substantive Proceedings / Post Judgment Costs Orders
Outcome
Application for indemnity costs mostly dismissed; partial indemnity costs granted for orange jar issue.
Legal Topics
Costs, Trademark Infringement, Passing Off, Settlement Offers
Civil Procedure Intellectual Property Costs Trademark Infringement Passing Off Settlement Offers

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Parties

Mars Australia Pty Ltd

Applicant

Sweet Rewards Pty Ltd

Respondent

Procedural Posture

Costs Application Following Dismissal of Substantive Proceedings / Post Judgment Costs Orders

Legal Issues

  1. 1 Whether indemnity costs should be ordered against Mars Australia Pty Ltd due to failure to accept Calderbank offers
  2. 2 Whether Mars should pay indemnity costs for the unmeritorious claim regarding the orange jar product

Ratio Decidendi

Mars was not bound to accept either Calderbank offer due to the lack of sufficient compromise and reasonable grounds for rejection. However, the claim against Sweet Rewards regarding the orange jar was wholly unmeritorious and warranted indemnity costs to mark the Court’s disapprobation.

Court Disposition

Application for indemnity costs mostly dismissed; partial indemnity costs granted for orange jar issue.

Orders

  • The applicant is to pay the respondent's costs on a party/party basis, except for costs associated with the orange jar allegations, which are to be paid on an indemnity basis.
  • Sweet Rewards is to pay a third of Mars' costs of the costs application.