Bread pack could confuse shoppers, High Court rules

 

BREAD COMPANY McCambridge has won a High Court case against rival Brennans over the packaging used for a brown bread product.

The court ruled McCambridge is entitled to an injunction against Brennans over the product being sold in packaging similar to that used by McCambridge.

Mr Justice Michael Peart found the Brennans packaging, introduced last January, was likely to confuse consumers, and McCambridge was entitled to appropriate injunctions to prevent this.

While he believed Brennans and its advisers genuinely believed the placing of the Brennans name, logo and other features on the packaging would avoid confusion, and that Brennans had not set out to deliberately imitate the McCambridge packaging, he found consumers could be confused.

He has adjourned to next week his decision on the precise terms of the injunction to allow lawyers for both sides to consider his finding.

Declan McGrath, for Brennans, said it was not in a position as of now to give undertakings that sales of the product would cease, but hoped to address the issue of a stay and other matters with a view to allowing Brennans to “come into compliance”.

McCambridge, with registered offices at Rathcoole, Co Dublin, had claimed Joseph Brennan Bakeries, trading as Brennans, set out to intentionally confuse McCambridge customers by deliberately copying the packaging of the established McCambridge product.

McCambridge has sold Irish stone-ground wholewheat bread as a rectangular 500g ready-sliced loaf in resealable packaging since 2008, and claimed there was “a confusing similarity” between packaging introduced by Brennans last January for its wholewheat sliced bread, and its own packaging.

Brennans denied the claims and contended its packaging was sufficiently distinctive.

McCambridge had sought injunctions against Brennans pending the outcome of a full hearing when other issues, including whether McCambridge is entitled to any damages, will be addressed.

While indicating a view yesterday that, up to the time of the hearing before him some months ago, McCambridge had been unable to establish actual loss as a result of actions by Brennans, the judge accepted he was addressing only the issue of liability in the hearing before him.

In his judgment, the judge said there was no doubt McCambridge enjoyed a reputation and goodwill in its product for reasons including its manner of packaging.

His task was to decide whether a reasonable member of the public wishing to buy the McCambridge product was likely to be confused into buying the Brennans product in error because the “general get-up” of the Brennans product so closely resembled the McCambridge one.

The consumer’s first overall impression of the products was crucial, and he was satisfied it would take more care and attention than could be reasonably attributed to the average shopper to avoid confusion between the McCambridge and Brennans products when observed on the shop shelf, especially when placed adjacently or even proximately so.

However, he believed Brennans had not deliberately set out to copy the McCambridge packaging so as to gain market share or to confuse the public.

While an e-mail from the ad designers to Brennans had stated a suggested alteration in the design brought “it closer to McCambridges”, that should not be taken at face value as part of a deliberate intention to adopt a design for the purpose of imitating the McCambridge packaging to deceive or confuse the public, he said.

The judge found positioning of the identifiable Brennans colours of yellow and red, its logo, and other distinguishing features on the packaging did not overcome the risk of confusion with the McCambridge product, as such distinguishing features might not be clearly visible to purchasers and did not stand out clearly enough.

The McCambridge packaging featured a green panel on the front of the bag and the Brennans packaging also included a green panel, although not identical in either the shade of green or size of panel, he noted.