Pet food companies Mars, Heinz Watties dispute over trademark

Pet food manufacturer Mars and New Zealand pet food company Heinz Watties are in a dispute over whether Mars can trademark the marketing slogan for its Advance pet food line in Australia, according to a local report. 
Mars wants to trademark the slogan "Advance Advanced Pet Nutrition," but was denied by assistant trademarks commissioner, Jennie Walden, because she said the trademark phrase was likely to confuse consumers due to its similarity to what Heinz Watties says is its unregistered trademark of "Champ Advanced Dog Nutrition." Under the Trade Marks Act, trademarks cannot be legally registered if they seem likely to confuse or deceive consumers, the report says. 
Mars appealed the decision, with lawyer Earl Grey claiming the phrase merely described the product and was not a significant part of the packaging, and that Heinz Watties never applied to trademark its slogan.
"Consumers pay more attention to the distinctive and dominant elements of a sign," Grey said.
Heinz Watties' lawyer, Nigel Robb, said that while the phrase was not registered as a trademark, it has been a recognizable part of Champ petfood packaging since 1998.
"We are here considering what the public will perceive," said Robb. "It is inevitable that members of the public who have seen this product on sale for 10 years or longer will make a connection with that tagline ... it is part of the branding."
The appeal was heard by former solicitor-general, David Collins, who has not yet given his final ruling.