According to Jenni Rutter, a partner at Dentons Kensington Swan in Auckland, there are indeed similarities in the design style. But, she adds this is not unusual in the food industry.

“It is often difficult to say where the line is between legal and illegal behaviour when it comes to trade dress,” explained Rutter. “On the whole, it is difficult to prove that packaging is deceptively similar. A lot turns on what the average consumer would think and whether he or she would be misled or deceived. Research shows that as consumers, we depend heavily on brand names to guide us when choosing products. The brand names in this case are quite different – ‘The Caker’ and ‘Cravings,’ so that helps people distinguish the products.”

“But we also have what is called ‘imperfect recollection,’” she added, “and we pay less attention when we’re choosing lower priced everyday products like bread or milk. Mind you, I doubt these lovely cake mixes fall into that category.”

However, there could be stronger argument that the Cravings product has overstepped the line if the baking kits were different from all other baking kits in the market, according to Rutter.

“It’s quite common to see a stoush about intellectual property when a competitor product joins a new category, using certain design cues to say to customers ‘me too,’” she said. “There is a fine line between honest competition and causing deception.”

A Cravings representative has denied Rondel’s accusation.

- Espie Angelica A. de Leon