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Maltesers take on Malt Balls over their packaging
Packaging is more than a container—it could easily be described as a silent salesman. Colours, typography, and imagery can trigger instant recognition and influence consumer choice. That’s why businesses spend millions protecting their “trade dress” and why, when competitors get too close, disputes arise under trade mark law, copyright law, passing off, and the Australian Consumer Law.
Two high-profile cases—the Maltesers–Delfi dispute and the Aldi “Baby Bellies” litigation—show the attitudes of Australian courts will go to protect original packaging design and prevent misleading similarities.
The Maltesers–Delfi Case
In Mars Australia Pty Ltd v Delfi Chocolate Manufacturing, Mars alleged that another company’s Malt Balls chocolate packaging also with a red background was deceptively similar to Maltesers’ iconic red branding.
The court agreed that Maltesers had a strong reputation but held other aspects of the packaging differed enough to avoid direct trade mark infringement—especially as a different font was used and only the Maltesers packaging featured the floating chocolate imagery. The judgment emphasised that reputation alone isn’t decisive; visual elements can tip the balance in a packaging dispute. In any event, here, everyone knew what a Malteser was so confusion might have been less likely.
The Aldi “Baby Bellies” Case
Fast forward to 2025, and Aldi—the discount supermarket giant well-known for selling “lookalike” products—found itself in serious legal trouble over the packaging of one of its toddler snacks, the Mamia Puffs range.
The problem? Another company already sold a very similar product under the “Baby Bellies” brand. Baby Bellies’ packaging was distinctive—it featured a particular colour scheme, soft, rounded shapes, a cartoon-style belly character, playful fonts, and a whimsical layout designed to appeal to parents shopping for healthy toddler snacks.
When Aldi launched its Mamia Puffs, the packaging looked strikingly similar. The layout, colour palette, and the presence of a friendly cartoon belly character were all there. Aldi did make some changes—it swapped an owl character for a monkey and altered a few design details—but the overall “look and feel” remained very close to the Baby Bellies original.
Baby Bellies on the left and Aldi’s Baby Puffs on the right
What the Evidence Showed
The real turning point in the case came from Aldi’s internal emails. These communications revealed that Aldi’s design team had been given very specific instructions:
“Follow the architecture” of the Baby Bellies packaging – in other words, keep the same overall structure and layout.
Use Baby Bellies’ imagery, placement of elements, and general design style as the starting point.
In one email, a designer even acknowledged that “Our design is too close to our benchmark”—with “benchmark” referring to the Baby Bellies packaging. Despite this, Aldi pressed on with the project and released the product to market.
The Legal Arguments
The Baby Bellies brand owners claimed Aldi’s packaging infringed their copyright under the Copyright Act 1968 (Cth).
Here’s the key point: In Australia, copyright protects “artistic works”, which can include the visual design of product packaging. Even if a product category—like toddler snacks—has common features, a specific packaging design that shows originality and creative skill is protected.
Aldi argued that it had changed enough details (different animal character, minor adjustments to layout and font) to avoid infringement. They also claimed that certain features were generic and couldn’t be “owned” by one company.
What the Court Decided
Justice Moshinsky took a step back and looked at the overall impression the two packages created. The question was: Would an ordinary consumer think the Aldi Mamia Puffs packaging looked like it came from the same source—or at least was connected—to the Baby Bellies brand?
The judge found:
The Baby Bellies packaging was an original artistic work – It involved creative skill and labour, and wasn’t just a collection of generic design elements.
Aldi’s changes didn’t break the similarity – Swapping the owl for a monkey and tweaking some features didn’t change the fact that the total impression was still extremely close to Baby Bellies.
The internal emails showed intent – The “benchmarking” approach proved that Aldi’s aim was to mimic, not independently create, the look. This was a major factor in the court finding Aldi’s conduct “flagrant”.
The Consequences
Because Aldi’s conduct was found to be a clear and deliberate breach, the court awarded:
Compensatory damages – to cover the losses suffered by the Baby Bellies brand due to Aldi’s copycat packaging being on the market.
Additional (punitive) damages – as a penalty for Aldi’s intentional and ongoing infringement, especially since they continued selling after being warned.
Finally, the court ordered Aldi to remove the infringing packaging from the shelves, meaning the Mamia Puffs had to be repackaged before they could be sold again.
Why This Case Matters
This case is a warning for all businesses—especially retailers and manufacturers—that “taking inspiration” from a competitor’s packaging can easily cross the line into copyright infringement.
It shows that:
- Even small visual changes might not save you if the total impression is still too close.
- Courts will consider internal company communications—if you’ve left a paper trail suggesting you copied someone, it will be used against you.
- Packaging is protectable intellectual property in Australia.
Or as Justice Moshinsky’s reasoning makes clear: “It’s not about whether each element is different—it’s about the whole package.”
Legal Lessons for Businesses
These cases underline several key points:
- Register your rights – Secure trade marks for names, logos, and distinctive packaging.
- Treat packaging artwork as copyright – Maintain dated records of design creation.
- Consider total impression – Courts assess packaging holistically, not detail by detail.
- Act promptly – The quicker you address copycat packaging, the stronger your position.
At Sharon Givoni Consulting, we assist brands, designers, and manufacturers in:
- Drafting licensing agreements for packaging artwork
- Preparing letters of demand to stop copycats quickly
- Conducting trade mark searches & registrations for packaging elements
- Advising on copyright ownership & enforcement
- Developing design protection strategies tailored to your product range
Our expertise spans trademarks, copyright, passing off, and misleading & deceptive conduct under the Australian Consumer Law. We bridge the gap between legal precision (“legalese”) and practical, commercially-minded advice you can act on (Legal Ease!).
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Sharon Givoni Consulting – Trade Marks Services
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FAQs
Q1: Can I copy the layout of a competitor’s packaging if I change the name?
Not necessarily. Even with a different name, copying distinctive imagery, colours, and layout may still infringe copyright or mislead consumers.
Q2: Is colour alone protected in packaging?
In rare cases, yes—if the colour has become distinctive of a brand (e.g., Cadbury purple on block chocolate).
Q3: How is “misleading packaging” assessed?
By looking at the overall impression on the ordinary consumer, not necessarily a side-by-side analysis.
Q4: What damages can be awarded in a packaging dispute?
Compensatory damages for losses, plus additional damages for flagrant infringement.
Q5: How can I protect my packaging before launch?
Register trade marks for distinctive elements, secure copyright ownership, and get legal clearance before going to market.
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.