Arnott’s slices into war with Unilever’s mint slice ice cream

Posted by AFN Staff Writers on 18th July 2016

LawBiscuit producer Arnott’s has lodged Federal Court action against ice cream manufacturer Streets, owned by Unilever, in an attempt to block the sale of its mint slice ice cream.

The two companies had previously engaged in deals to incorporate some Arnott’s products in Streets ice cream including Blue Ribbon ice cream with Tim Tams.

According to Fairfax, the companies had signed a mutual confidentially agreement to protect Arnott’s disclosure of information, including some of its biscuit recipes. Since signing the agreement Streets and Arnott’s have however stopped working together on possible collaborations.

Misleading conduct alleged 

Arnott’s claims that the mint slice ice cream could mislead consumers into thinking that it contained Arnott’s products when in fact it does not.

Generic alternatives stocked by supermarkets have different names such as Coles’ “Chocolate Mint Supremes” and Woolworths’ “Mint Crème Chocolate Biscuit”. According to Arnott’s the use of “mint slice”, rather than a generic name, by Streets could be taken to indicate an association with the Arnott’s biscuits.

In response to the legal proceedings, Arnott’s told Australian Food News “Arnott’s has been baking Australia’s favourite biscuits for over 150 years.  Our brands are our business, and we have a responsibility to protect them. As this matter is before the court we don’t have any further comments.”

A Unilever spokesperson told Australian Food News “We can’t comment on ongoing legal proceedings.”

Under what grounds could legal action possibly take place?

Section 18 of the Australian Consumer Law (ACL) applies to conduct which is misleading or deceptive.  It is commonly used for similar matters and has a number of notable characteristics:

  1. It is one of the only provisions in the ACL that allows one company to take action against another company without any involvement from the ACCC
  2. Whether conduct is misleading is dependent on the mind of a hypothetical reasonable consumer. This may not always line up with arguments presented by parties to a case
  3. Error must be caused, or be likely to be caused. It is not enough if consumers are simply confused