American-Dutch coffee conglomerate Moccona maker sues Australia’s Vittoria over glass jar

The American-Dutch coffee conglomerate behind Moccona, Jacobs Douwe Egberts (JDE) and Koninkliijke Douwe Egberts BV (KDE), has accused Australia's Vittoria Coffee of copying Moccona's "iconic" shape of instant coffee in a glass jar.

The company sued Vittoria in Federal Court on the grounds that the latter was selling coffee in a glass jar that consumers might confuse for a Moccona product, which it said was misleading and deceptive.

Since the 1960s, JDE has sold Moccona in flat-top glass jars in Australia and has emphasized the jar as a distinctive aspect of the Moccona brand, calling it one of its "crown jewels" and of "utmost commercial importance" and featuring it prominently in marketing materials over the years.

“Consumers use the glass jar as a ‘shortcut’ visual cue to identify the premium product contained within it, so they can be confident that the product they are buying is a premium, high-quality Moccona product,” JDE head of category development and shopper insights Ross Tillman stated in court documents.

Vittoria's 400-gram product is the focus of the debate. Tillman asserts that Vittoria's 400-gram offering had a greater impact on JDE than its 100-gram and 200-gram jars.

“By advertising, promoting, offering for sale and selling infringing products in a shape resembling [Moccona’s glass jar], [Vittoria] is likely to mislead some ordinary and reasonable consumers of coffee in Australia into the erroneous belief that the infringing products emanate from [JDE] or are otherwise connected, associated or affiliated with [JDE] and their premium coffee products,” said the court documents.

The reputation, goodwill, market share, and supermarket shelf space of the Moccona coffee maker would suffer, according to JDE, if Vittoria keeps increasing its distribution and sales of the coffee. In addition, the brand might be forced to alter its marketing approach, which prominently emphasizes the jar.

Vittoria, founded in Sydney in 1947, began selling instant coffee in supermarkets during the pandemic in May 2021.

The company has filed a cross-claim, stating it will "vigorously defend" itself in the proceedings.

“We don’t need, nor would we attempt, to trade off Moccona’s reputation because, in effect, our reputation is so strong,” said Les Schirato, CEO at Vittoria.

The Australian coffee firm contends that Moccona's jar was not recognizable from any other glass jar and that JDE's trademark for the Moccona jar is therefore invalid and ought to be cancelled.

Furthermore, Vittoria claims that JDE has no intention of using the trademarked design and hasn't done so.

“The KDE Shape Mark is a functional design [being a container] and is not to any extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons,” Vittoria claims.

“Any use of a container or a jar was not use[d] as a trademark, but rather use[d] as a functional container, and thereby does not distinguish the designated goods or services as being those of KDE.”

Schirato added that the Vittoria logo, prominently featured on the glass jar’s label, removes any confusion in the consumer’s mind that the product is associated with Moccona.

“You don’t get Moccona being served in cafes, restaurants, and five-star hotels,” he continued.

“So, for me, the issue of passing off or trying to attempt to pass off on their reputation is not something we would ever want.”

PitchMark covered a story about German supermarket chain Aldi losing the lawsuit battle against Marks & Spencer after the High Court ruled that it had infringed the latter’s gin bottle design. The grocery chain was accused of "copying" the retailer's Christmas light-up gin bottle designs with its own-branded version.

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