Mars meltdown and menu disclaimers

A month ago, in "Mars, the bringer of ... calories. But will he land a PGI?" the IPKat reported here on an attempt to secure protected geographical indication status for the controversial and, some say, lethal product known as the Stonehaven Deep-Fried Mars Bar. While the delay may be surprising, the fact that  Mars has responded is only to be expected.  As one might have predicted, the leading brand company's response was not wholly enthusiastic.  According to "Deep-fried Mars bars disowned by chocolate firm", posted today on the BBC website:

"Chocolate manufacturing giant Mars has distanced itself from the famous deep-fried Mars bar by seeking a disclaimer. The Carron Fish Bar in Stonehaven, in Aberdeenshire, claims to be the birthplace of the recipe almost two decades ago. Mars has written to the owners saying the product is not authorised or endorsed as it does not fit the company's promotion of healthy living. A menu disclaimer is being sought.

A Mars spokesperson said: "We are really flattered that customers of Carron Fish Bar like our product so much that it has now become a flagship product for the store [Merpel's not so sure. If they liked the product that much, wouldn't they eat it as nature intended it, rather than subjecting it to a further manufacturing process?]. No application for a protected geographical indication has been filed to date. Should an application be filed, unfortunately, we wouldn't be able to support it as deep-frying one of our products would go against our commitment to promoting healthy, active lifestyles."

The deep-fried Mars bar has become synonymous with negative aspects of the Scottish diet since it was first reported in the Daily Record in 1995. The newspaper called the phenomena, with its links to Stonehaven, "Scotland's craziest takeaway" and said "sweet-toothed youngsters are ordering their favourite choc bars deep-fried in batter". By 2004, the reputation of the deep-fried Mars bar had travelled the Atlantic [which makes the IPKat wonder about the extent to which a brand owner may invoke evidence of unsolicited and unwanted reputation in support of its own trade marks ...] and it was mentioned on the Jay Leno Show in the US [ ... though, presumably the mere mention of the brand in this manner wouldn't be 'trade mark use' under European law, the Kat adds]....".
The IPKat points to the intersection of some interesting fault-lines in European law: (i) MARS is both a registered trade mark for confectionery products and the generic term for a specific type of unique confectionery, the Mars Bar; (ii) the trade mark owner's right in respect of each Mars Bar which is placed on the market by Mars or with its consent is exhausted, yet the subsequent use of the word Mars to describe the contents of a deep-fried Mars Bar is both arguably deleterious and acceptably descriptive; (iii) the use of the MARS trade mark as a means of preventing Stonehaven Deep-Fried Mars Bars being called by that name might upset those competition lawyers who don't like to see an intellectual property right invoked in order to prevent the development of a new market which the trade mark owner and its competitors currently do not serve.

Comments, anyone?
Mars meltdown and menu disclaimers Mars meltdown and menu disclaimers Reviewed by Jeremy on Wednesday, September 05, 2012 Rating: 5


  1. Is there anything to stop any applicant broadening the application to e.g. "Stonehaven deep fried confectionery", thus simultaneously avoiding trade mark issues whilst also covering obvious further experiments with e.g. Snickers?

    Chris Torrero

  2. There is an advert for the VW Golf motor car which shows a number of examples that have been modified (suspension lowered, flared wheel arches, go-faster stripes and so on). In other words, not as VW intended. The advert suggests that it's a shame, and that one should "feel sorry" for those poor cars that have been subjected to such degradation. Of course, VW is actually most pleased that their car is a favourite amongst the modifying fraternity so, rather than challenging the modifiers on the basis of trade mark abuse they actually celebrate it in their adds under the guise of disapproval. Surely Mars would do well to do the same?

  3. They usually taste vaguely of fish!

    I was unaware of the Stonehaven connection until recently. According to this website,
    "Some reports on the deep fried candy bar suggest they originated as something of a joke in Scotland in the mid-1990s. The early candy bars to be battered and fried were likely Mars Bars® and they may have been first prepared in Stonehaven, Scotland at the Haven Chip Bar. However cooks may have independently prepared these much sooner for home consumption alone, since in the 1980s there were references to them in several UK comedy shows."

  4. Boringly, I would query whether Mars Bar is truly a generic term for such confectionery - if this were the case, the validity of the registration would surely be questionable?

    Meanwhile, I would argue that this counts as a "repackaging" case (see pharmaceutical cases passim ad nauseam) and that the repackaging has clearly affected the condition of the product, both literally and metaphorically.

    Oh no, I think I just invented deep-fried Viagra...

  5. As far I see it..

    article 6.1 of The Trade Mark Directive clearly states that the trade mark shall not entitle the proprietor to prohibit a third party from using the mark in the course of trade for indicating characteristics of the good of services. Provided the third party uses the mark in accordance with honest practices in industrial or commercial matters.

    So unless Mars can proof that the restaurant's use of the mark was not in accordance with honest practises - for instance by proofing that the restaurant doesn't use real Mars bars but still refers to them as if are the real deal - I doubt Mars can force a disclaimer. (apart intimidating practices).

  6. Stonehaven would do better to promote Microsoft's use of Dunottar Castle as a background picture than allow it to be promoted as the epicentre of all that is most unhealthy about the Scottish diet. These GI's need state support so perhaps it is not surprising that there is no application

  7. A Martian walked into a bar...

  8. Large chips with that please. Easy on the vinegar.

  9. Dear Jeremy,

    We act for MARS and don't think you should be referring to our product as 'generic'. Further, our product is a health-giving dose of natural goodness which is why we are not happy with people deep-frying it !


    O.Beese and Cal O'Ree (Lawyers for MARS INC)

  10. Dear O.Beese and Cal O'Ree -- you are of course absolutely right that, in the trade mark sense, MARS is a validly registered trade mark for the goods specified. But what I'm getting at is a sense in which, if you ask a consumer, "What do the words MARS Bar convey to you?", you're less likely to get an answer along the lines of "A chocolate confection manufactured by Mars" and more likely to get a description of its physical appearance, texture and taste that accords to its genus.

    I never eat them fried, deep or otherwise. They're quite good straight from the fridge! That may or may not affect their nutritional value, but it does mean you can linger over it a little longer before the chocolate melts ...

  11. Which is precisely why you simply can't have these complex matters decided by actual consumers.

    Heavens above - they'll be trying patent cases by jury next.....

    Yours ever,

    O. Beese and Cal O'Ree

  12. Gotta love the names of the presumed lawyers :)

    Yours truly,

    Dia Betic

  13. Surely Mars would do well to do the same?

    I'd think that Mars' refusal to endorse this deep-fried delicacy, and its alleged "promotion of healthy living" is guided less about the popularity of their product than by the prospect of taxes on unhealthy food. Knowing that governments are currently looking for new tax revenues more desperately than usual, they must understand that endorsing an avowedly unhealthy activity, with a significant cost to the NHS in terms of heart stents and bypasses, would be akin to painting a big fat target on their wallets. The fate of the tobacco industry is a precautionary tale for many...


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