In a recent high profile case, the High Court decided that the average shopper might be confused by the similarity in packaging of Brennan’s wholewheat brown bread and that of McCambridges, particularly when the two products are displayed beside or close to each other on a shop shelf. As a result, the Court granted an injunction restraining Joseph Brennan Bakeries from selling its wholewheat brown bread in the confusingly similar packaging. (To view a previous article on this case, please click here.)

In reaching this conclusion, the judge put himself into the shoes of a reasonably prudent person who is not in any particular rush and who goes into a shop with the intention of buying McCambridges wholewheat brown bread. Would such a person be reasonably likely, because of the similarity in the packaging, to inadvertently leave the shop with Brennan’s wholewheat brown bread?

In order to help the judge answer this question, a section of the court room was transformed into a mini-supermarket and samples of both products were displayed on supermarket shelves. Although the judge accepted that there were differences in the packaging (the use of different colours and logos), he was concerned with the overall appearance of the product on a first impression. He noted, in particular, that the distinguishing features of the products might not be clearly visible from a shelf display. Accordingly, he found that there was a risk that even a reasonably careful and observant consumer might not notice the differences until the product was in his hand. This was particularly so in circumstances where the purchase of bread is not something to which the ordinary shopper normally devotes much time.

While the Court did find that the packaging of the two products was confusingly similar, it dismissed McCambridges claim that Brennan Bakeries had deliberately copied its packaging in order to gain market share. This aspect of McCambridges claim took up a significant amount of court time and as a result the Court only allowed McCambridges to recover 40% of its costs from its rival. (To view a previous article on this aspect of the case, please click here.)

The judgment is a reminder to every business, in whatever sphere, of the importance of brand identity and the need to make sure that confusion cannot arise between your product and that of your competitors. Registration of a business name does not protect a brand. It is important to make sure that the name under which you trade is registered as a trade mark and that any “get up”, that is the presentation and look of the brand, is registered as a design, if at all possible. These precautions will assist to enforce your intellectual property rights, so that you are not reliant solely on whether the products are confusingly similar.

Contributed by Mary Drennan and Carol Plunkett.