What happens to the middle of Polo mints has been debated by bar-room philosophers ad infinitum. But now we know that, whatever it is, Nestle UK, Polo's makers, cannot guarantee exclusive rights to the title "the mint with a hole".
The company had tried to get an injunction stopping the American sweet, Life Savers, being marketed in Britain as the "original mint with a hole". It argued that the public could become confused between the two.
But Lord Justice Aldous, in his judgment with Lord Justice Russell and Lord Justice Saville, said there was nothing in the evidence to suggest that the public would believe that Life Savers were a Nestle sweet.
"They will realise they are a rival product," he said, refusing leave to appeal against a High Court decision earlier this week.
Derek Wilson, joint managing director of Trustin the Foodfinders, the company who hope to import Life Savers, said it was no longer planning to use the line "the original mint with the hole", but reminded Nestle that Savers had been in existence far longer. Looking like lifebelts, the sweet was created in 1912 and given the name because it looked so much like a lifebelt (the first slogan was the considerably less snappy: "For That Stormy Breath").
A spokeswoman for Nestle said last night that the company was "disappointed" that the interim injunction had not been granted, adding: "The action under common law is still pending and we are currently discussing the position with our legal advisers."Reuse content