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Crumbl and Stumble: Pitfalls of Unauthorised Imports
We have all heard the phrase: “There’s no such thing as a free lunch.”
American economist Milton Friedman said that and, as it turns out, a fresh Crumbl Cookie pop-up in Bondi Beach.
In October 2024, Sydneysiders were lured by the promise of a Crumbl Cookie pop-up, an exclusive chance to taste the famed U.S. brand’s indulgent treats. But instead of warm, gooey cookies fresh from the oven, they got stale imports at $17.50 a pop—a price that left a bitter aftertaste.
What made this even more appetising from a legal standpoint? The pop-up had no affiliation with the actual Crumbl brand. An enterprising individual had flown to Hawaii, stocked up on cookies, and resold them in Australia—complete with Crumbl’s branding, packaging, and social media presence.
The fallout? Consumer backlash, legal grey areas, and a public relations boost for Crumbl—all of which serve as a fascinating case study on parallel importing and the legal risks involved.
The Legal Crumbs: What Went Wrong?
At its core, parallel importing is legal in Australia, but it’s not a free-for-all. The law allows the importation of genuine products without permission from the brand owner—but only under certain conditions. Get it wrong, and importers can face trade mark infringement, copyright violations, misleading or deceptive conduct claims, and passing off.
1. Trade Mark & Copyright Infringement
While the cookies themselves were genuine, the problem wasn’t the product—it was the presentation. By using Crumbl’s branding, logo, and packaging, the organisers may have breached trade mark law under the Trade Marks Act 1995 (Cth).
Similarly, reproducing Crumbl’s signage and promotional materials could have violated copyright laws under the Copyright Act 1968 (Cth), especially if the pop-up’s advertising included brand-created images or slogans.
2. Misleading or Deceptive Conduct & Passing Off
Under Section 18 of the Australian Consumer Law (ACL), businesses must not mislead consumers. If people walked away from the event believing Crumbl had officially landed in Australia, the organisers may have crossed the line.
The organisers never explicitly said they were affiliated with Crumbl, but their marketing—such as using the TikTok handle @crumblsydney—did all the heavy lifting. In legal terms, this could constitute passing off, where a business benefits from another brand’s goodwill without permission.
3. The Section 122A Defence: When Parallel Importing Is Allowed
So, could the organisers have legally imported and resold the cookies? Possibly—if they had followed the rules.
The Trade Marks Act offers a defence for parallel importers, but only if:
- The trade marks on the goods were applied with the brand’s consent (e.g., Crumbl’s logo wasn’t added post-sale).
- The importer made reasonable inquiries to confirm the products were originally sold with permission.
Lessons for Importers & Brand Owners
The Crumbl cookie fiasco offers some great lessons for both businesses looking to import products and brands seeking to protect their IP.
Lesson #1: Avoid the “Copy-Paste” Approach
Importers should:
- Sell genuine products with the trade mark owner’s consent.
- Use original promotional material.
- Make it clear they are not endorsed by the brand.
- Check if the products meet all Australian regulations.
Lesson #2: If You’re a Brand, Watch distribution
Brands worried about parallel imports should:
- Register their trade marks and enforce them. For more about trade marks see: Trade Mark Registration – What’s in a Name? https://sharongivoni.com.au/trade-mark-registration-name-benefits/.
- Tighten distribution agreements to restrict unauthorised reselling.
- Monitor leaks in the supply chain and investigate how unauthorised sellers are sourcing their products.
How We Can Help You
At Sharon Givoni Consulting, we advise businesses on both sides of the parallel import equation—whether you’re looking to import products legally or protect your brand from unauthorised sellers.
- For importers: We help you navigate trade mark and copyright risks, review disclaimers, and ensure compliance with Australian laws.
- For brands: We assist in trade mark registrations and distribution agreements.
There is a saying that “fortune favours the prepared mind”—and in business, that means understanding the law before you sell.
Don’t be scared to ask for legal advice – it can save you a lot of money and pain down the track.
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.