Ever notice how some of the off-brand chocolate bars at Dollarama look strangely familiar?
The packaging of Dollarama's Meteor, Titan and Island Bar chocolate bars looks very similar to the Mars, Snickers and Bounty bars made by Mars Inc. In all cases the Dollarama bars use the same colours and logo design as their more well-known counterparts. That's a violation of Mars Inc.'s trademark says John Simpson, a lawyer and registered trademark agent at Shift Law – an intellectual property and new media law firm in Toronto.
“The Meteor Bar appears to be an infringement of the Mars trademark and copyright in the artwork and the design. It appears to be a reproduction of a substantial part of their design and I would say the same about the Titan and Island Bar,” says Simpson, who is not associated with or retained by either Dollarama or Mars Inc.
Trademark vs. Copyright
A trademark can also be subject to copyright because these trademarks are artistic works and since Simpson believes that these off-brand chocolate bars incorporate a substantial part of the artistic work made for Mars, including colour schemes, designs and illustrations on the packaging, then it’s his opinion that Dollarama is also infringing Mars Inc.'s copyright. Mars's trademark would only apply to a reproduction or similar design on chocolate bars and confections, while a copyright would apply no matter where the design appeared.
“Mars Inc. would own trademark rights in the logo of Snickers, Mars and Bounty. They would own exclusive rights to the use of those designs and any confusingly similar designs in association with chocolate bars and confections. Anyone who uses those designs or confusingly similar designs is infringing on Mars's trademark rights. The company doing that would be anyone making these bars and anyone in the chain of sale.”
Dollarama distributes these off-brand chocolate bars, but the retail chain's policy is to not disclose who makes their private label products. All it says on the chocolate bars is that they are made in Turkey.
The Question of Infringement
In any case, representatives from Dollarama do not believe Meteor, Titan or Island Bar are infringing on Mars's trademarks or copyrights.
“While there are similarities across all such confectionary products, our store-brand chocolate bars are nonetheless distinct from the name-brand ones. They include important differences in terms of identity, name, branding, packaging and price point.As a result of these differences, there is a clear choice and no confusion for the customer when making a purchasing decision. For example, when you purchase a Meteor you know you are purchasing a Meteor,” says Lyla Radmanovich, Dollarama's manager of corporate communications.
“I'm not a lawyer, so I can't give a legal opinion, but certainly if we thought we were infringing on a trademark we certainly wouldn't be selling the products as they are now. This is something our procurement team is always very sensitive to and mindful of respecting – and that goes for any store brand not just chocolate bars.”
If Mars were to ever take legal action, the question before the court would centre on whether a relevant consumer would be confused into thinking Meteor for example, is a Mars bar, is made by Mars or is endorsed by Mars. Dollarama says they don't think so and while Yahoo Canada has reached out multiple times to Mars Inc., company representatives have yet to give their take on the situation.
“Typically, the question of infringement would be determined by survey evidence where people would be asked whether they are at all confused about the packaging to think it has some sort of Mars affiliation,” says Simpson.
Even if Dollarama were found not to be in violation of Mars's trademark, Mars would still have some legal rights.
“Section 22 under the trademark act allows those with a trademark to prevent someone from using a design in a manner that is likely to depreciate the value of the good will in a registered mark. This would be a case where the court would say, 'Okay fine, people aren't actually confused, but your using Meteor in a way that's depreciating the value of the good will in the Mars Bar mark' and that could be a stronger argument in this case,” says Simpson.
He also explained that someone is much more likely to be confused when it comes to a low-cost item like a chocolate bar because consumers are much more likely to buy them in a hurry and not really look at what they're buying, as opposed to a car or some other big ticket item where people carefully consider their purchase.
“All of this is relevant in a court of law,” says Simpson.
I can't believe it's not Mars!
It's not just the off-brand packaging that has similarities to Mars, Snickers and Bounty. Various videos and blogs online make the case that the chocolate bars themselves use the same or similar ingredients in different proportions and taste very similar to Mars's name brand equivalents. I personally tried all the bars as well, and agree the off-brand versions have a similar taste to their Mars equivalents.
“This is not the first time something like this has happened. You see this all the time in consumer goods, but the infringement is usually not quite as obvious as it is here,” says Simpson.
He's right. Just a few weeks ago, Tim Morton's brand coffee was found in Seoul, South Korea much to the chagrin of Tim Horton's
When asked whether Dollarama chose a similar design for a strategic sales reason to piggy-back off the name recognition of Snickers, Mars and Bounty, or to signal to the consumer that its off-brand chocolate bars taste similar to their name brand equivalents, Radmanovich had this to say:
“Dollarama’s goal and strategy when it comes to offering both store and brand name products is to provide an even broader range of merchandise and compelling value for our customers, who are both brand-aware and cost-conscious. Store brands are a great way of providing customers with additional options, and most often at a lower price point.”
But if you ask John Simpson, he'd say Dollarama's being disingenuous.
“Dollarama knows a chocolate bar is an impulse buy and they're totally exploiting that,” he says. “If people are looking for a Mars bar, but they see a Meteor Bar the packaging will signal to them that the meteor bar will give them the same feeling. [Dollarama] is piggy-backing on all the goodwill of the Mars trademark for sure.”