Whiskas winning advertising cat fight

The case is over Whiskas' protein claims. Photo / Getty Images

Pet food company Mars rejects accusations from rival Nestle.

Whiskas has won the first round of a legal cat fight with the maker of Purina pet food, after a High Court judge ruled its local distributor had an arguable defence to accusations its packaging is misleading.

Nestle NZ, which sells Purina cat biscuits, brought High Court action claiming Whiskas' packaging has misleading statements in breach of the Fair Trading Act.

The case, being defended by Whiskas' owner, Mars NZ, is over claims on Whiskas packets saying the cat biscuits have the "highest level of protein".

A smaller explanatory box says this is based on the average of the Whiskas dry range compared with leading dry range cat food brands in supermarkets, excluding Optimum.

Read the most recent court decision on the case here:

Nestle went to the High Court at Auckland last month applying for summary judgment that Mars had breached the Fair Trading Act.

Nestle also wanted an interim injunction while the dispute played out through the courts.

Nestle's lawyer Laura O'Gorman told Justice Pamela Andrews that a consumer buying Whiskas biscuits was likely to be buying a product that did not have a high level of protein.

This was because 83 per cent of Whiskas cat biscuit sales were of two varieties which had a lower level of protein than other products in the company's range and lower than the protein levels of six out of eight products in Purina's range.

Mars opposed both applications, saying the protein claim was not misleading and that the explanatory box was clear and accurate.

Justice Andrews dismissed both of Nestle's applications in a decision this week.

"On the evidence of the Whiskas packaging, Mars has an arguable defence that there is no real risk that the protein claim and accompanying text qualifying will mislead or deceive consumers," the judge said in dismissing the summary judgment application.

While saying there was a serious issue to be tried, she was not persuaded the interim injunction should be granted.