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?