A chocolate war has had a sweet end for Whittaker's but left Cadbury with the bitter taste of defeat.
Cadbury tried to stop Whittaker's from using a Berry Forest trademark in New Zealand, claiming it was too similar to its popular Black Forest confectionary.
But Whittaker's will be allowed to trademark their chocolate, after a Wellington High Court judge ruled the names were different enough to avoid confusion for consumers.
Cadbury owns the Black Forest trademark, and has used it to sell chocolate with cherry and biscuit pieces in New Zealand for 20 years.
Last year, the Intellectual Property Office ruled Whittaker's was free to trademark the Berry Forest name for a chocolate which hasn't yet been revealed.
Cadbury appealed the IPO's decision to the High Court, arguing the name was likely to deceive or confuse consumers.
The chocolate company said the only difference between the marks was `black' and `berry', and even those words shared the same first letter and number of letters.
The risk of the two products being confused was exacerbated by the fact chocolate was a casual or impulse purchase and the chocolates were often displayed next to each other in shops, Cadbury argued.
But in her decision, Justice Rachel Dunningham dismissed Cadbury's appeal.
Justice Dunningham agreed there were undeniable similarities between the individual marks.
But she said the marks brought to mind different concepts - Black Forest conjured up the gateau of the same name, while Berry Forest referenced a forest full of berries.
"Cadbury's mark adopts a well-known phrase which brings to mind a specific combination of ingredients.
"It will therefore be recognised in the way that the made-up combination of words in the mark Berry Forest will not be."
Whittaker's is entitled to legal costs.
