Clifford Gouldson Lawyers

Masterchef vs Mr Whippy - the war of the highest profile

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We all remember buying our first ice cream from a Mr Whippy van in our local neighbourhood. Over the decades that have followed Mr Whippy has developed into a somewhat smaller business operating only a couple of stores on a retail basis in Blacktown and Warriewood in New South Wales.

Despite this, the brand name is synonymous with Australian’s and their childhood. And recently the original Mr Whippy vans (including one genuine 1960s vehicle) returned to the streets in Victoria.

If we cut to 2013 we see a massive industry surrounding excellence in food and wine. At the top of that tree is arguably Mr George Calombaris, a key host of Masterchef in Australia.

What is it that has brought these two Australia identities together? Who will be the winner or the loser in this battle for reputational integrity?

On 3 September 2012, Mr Whippy Pty Ltd (Mr Whippy) filed a claim in the Federal Magistrates Court of Victoria against Masterchef judge George Calombaris’ restaurant St Katherine’s, for using the name “Mr Whippy” in its dessert menu.

Mr Whippy alleged the following causes of action against St Katherine’s:

  1. Trade mark infringement;
  1. Misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law (“ACL”);
  1. False representation that its dessert had the sponsorship of, approval of, or some affiliation with Mr Whippy when it did not in contravention of section 29 of the ACL; and
  1. Passing off.

Years ago any legal dispute was unlikely to make it to the public domain unless it was a very newsworthy item and there was some real connection to the media. In other words, unless a media release was published the litigation tended to be kept confidential between the parties to the dispute and their legal representatives.

Those times have changed, and this particular dispute is a classic example of that. In the age of social media the parties to this particular dispute have resorted to the use of the public social media sites like Twitter and Facebook to keep the public informed of what would otherwise have remained a private dispute.

Around 5 September 2012 the present owner of Mr Whippy Mr Stan Gordon made public selective extracts of a letter from George’s Lawyer which stated “your client has never sold its desserts in restaurants - and especially not in high profile restaurants operated by “celebrity chefs”. It has no relevant reputation in this market”. Mr Gordon made this extract public because he claimed the letter was “the most arrogant piece of correspondence I have ever read. It basically said you are not a celebrity and we’ll do whatever we want”.

George’s response to that was to tweet the following on Twitter:

            I dislike people that use others as a publisity [sic] stunt 4 there [sic] own benefit. As a chef you pay homage to nostalgia and childhood memories. GC


            My solicitor said that I look good in a wig and gown which is good as I am always prepared to fight for my integrity.

Putting aside for one moment the spelling and grammatical mistakes in both communications to the public, readers then decided to start commenting on who they felt was right or wrong.

In what was formerly an unheard of practice you suddenly had the public making judgement remarks about something that they felt was “pathetic” and “opportunistic”. Some might argue that “any publicity is good publicity”. Perhaps George and the new owner of Mr Whippy are best placed to assess whether this proved to be true for them. Recent reports are that the dispute settled outside Court for a modest sum of money to be donated to charity.

One point to note however is that social media does now have the potential to wedge itself in between solicitors representing their respective client’s in a litigation dispute in a way that nothing has been able to do before. What is clear is that the ability to control the communication once it goes public and to reasonably predict the public’s reaction to that communication is impossible to predict with any certainty.

No wonder many solicitors in this day and age actively encourage many of their higher profile clients to consider not only the legal but the communications strategy involved in the dispute.

If you’re involved in a dispute and need advice not only dealing with the legal issues, but with any reputational or commercial fallout from the dispute, please contact Clifford Gouldson Lawyers.

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