Where the distinguishing feature of a trade mark and get-up is a brand name, and other features relied upon (colour, product depictions) are commonplace in the relevant industry, a competitor's use of those commonplace features with a different brand name and descriptive product name will not constitute trade mark infringement, passing off, or misleading and deceptive conduct. Descriptive words for a product (such as 'Malt Balls' for chocolate covered malt balls) are not used as a trade mark.
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