Simplified headlines attract clicks, so most of the planet have been spreading the news today that m&m's have been "banned" in Sweden. That's not quite what's going on, m&m have simply lost the right to advertise their button drop chocolates with the lower case "m" logo on them. If they change that, and the packaging they can sell as many button drop chocolates as they want. Knowing branding though, m&m will not want to change one thing about their little "m" marked candies.
Even in Sweden headlines like Marabou wants to ban m&m's have been appearing since 2009, so it's little wonder this is how it's still reported as if it's a total button-chocolate ban. Instead it's all about that lower case "m".
Since 1957, Marabou has been selling milk chocolate covered peanuts under the name "m" in Sweden, and when m&m's appeared on the market with an extremely similar "m" people got the brands confused. Nobody seemed to care much until 1993, when Mondelez(Kraft) bought Marabou and became the owner of the "m" button chocolate candy brand. What you're seeing today is a trademark battle between two american food brand companies taking place in Swedish courts, where they have been battling over a lower case "m" for the past seven years.
Until 2009, m&m's weren't even sold in Sweden, as m&m honoured an agreement with Marabou to not muscle in on the lower case "m" territory. In September 2009 Mondelez sued Mars for "counterfeiting" and trademark infringement of the lower case "m". In 2010, m&m launched on the Swedish market and countersued to have the Mondelez owned Marabou "m" trademark declared invalid, since Mars "m&m" have been a global brand since 1941. Mars Incorporated won the first court round in the "market court", but the tingsrätt and now Svea Hovrätt (higher court) have given Mondelez the win.
m&m can no longer sell their chocolate button drops & chocolate covered peanuts with the little lower case "m" logo on them in Sweden. That's all. Mars still has the opportunity to appeal the court verdict. the lower case m&m's are now prevented from selling on the Swedish market effective 30th of June unless Mars decides to take their chocolate balls to the Supreme Court . If the Supreme court declines the case, the prohibition is a fact.
"We have always believed no confusion exists between the colourful m&m's brand - one of the world's favourite chocolate products - and the Marabou M Peanut Brand," said Mars in a statement. "Given the court's decision we will assess the next steps for our beloved brand in Sweden," it added.
Mondelez concluded in a short written comment: "We are pleased with the court's decision, as our brands are very valuable for us."
Magnus Ahlgren, General Counsel for the design and branding unit at PRV (Patent and Trademark Office) doesn't think it's all that strange that the courts have reached different conclusions:
- It is not unusual that the same phenomenon leads to different results in marketing law and trademark law, because it is not completely identical trials, he said to Sydsvenskan. Magnus Ahlgren would not comment on the chances that the Supreme Court might take the case because he has not read the Svea Hovrätt verdict, but adds:
- "In principle, it should be an important point of law for the Supreme Court to grant an appeal." That's legal-speak for "not bloody likely, mate."