Brown bread at centre of dispute made by third company

A brown bread product at the centre of a bitter legal battle between rival bread companies McCambridge’s and Brennans was actually manufactured by another company, the Commerical Court has heard.

"It's not 'Brennans bread today', it's Doyle's bread," Mr Justice Peter Kelly observed today when referring to the wholewheat product over which McCambridge's had successfully sued Brennans.

McCambridge's had in 2011 initiated its action against Joseph Brennan Bakeries alleging the defendant was selling the product in packaging confusingly similar to McCambridge's stone-ground wholewheat bread product.

McCambridge's won in the High Court and the Supreme Court had in July 2012, by a four to one majority, dismissed Brennans' appeal and ordered it to change the packaging on the product at issue.

The sides are now engaged in proceedings to determine how much money Brennans must pay to McCambridge’s arising from the profits made from the infringing product.

In a preliminary ruling yesterday on issues related to that matter, Mr Justice Kelly upheld McCambridge’s objections to Brennans’ move to lodge a sum of money in court to meet McCambridge’s claim.

McCambridge’s had argued a lodgment was inappropriate when it was seeking an account of profits made from the infringing product and was still engaging with Brennans in relation to the profits figure. In advance of conclusion of that process, it would be wrong to pressurise it to accept a particular sum, it argued.

Mr Justice Kelly ruled the taking of an accout of profits should not be equated with a claim for damages and the lodgment proposed was not permitted under the relevant court rules. It would be unjust to allow a defendant to such a case make a lodgment with costs consequences should the account of profits yield a lesser sum than that lodged, he said.

Last February, solicitors for McCambridge had written to Brennans indicating it appeared, on foot of information supplied by Brennans, the defendant made a profit of €608,481 arising from the disputed packaging. McCambridge’s sought further information in its efforts to identify the sum being sought from Brennans.

In his ruling today, the judge noted McCambridge's solicitors had written to Brennans last July saying their client had been surprised to discover for the first time the infringing product was not in fact manufactured by Brennans at all but rather manufactured by Doyle's Quality Products Ltd and delivered fully packaged to Brennans.

After McCambridge’s sought clarification of the relationship between Brennans and Doyle’s, Brennans confirmed Doyle’s manufactured and packaged the product and said Brennans would account to McCambridge’s for any profits earned by Doyle’s relating to the product without the need to join Doyle’s to the case.

Mr Justice Kelly has agreed to adjourn the matter to the new year to allow the sides engage on a range of issues.