BRENNANS - CONFUSING BROWN BREAD!
For the later part of this year, I have been watching with great interest (partly due to a fondness for the subject matter) the passing off case involving bread makers McCambridge’s and Brennans. McCambridge’s sued Brennans claiming deliberate copying of its brown bread packaging which would cause confusion within the market. You might wonder what sparked such action. The matter seems to have arisen after Brennans changed the design and colour of its packaging in January 2011, adopting a transparent, resealable packaging with a dark green rectangle on the front of the packaging and McCambridges’ claimed that this re-branding would result in confusion amongst its own customers. Would you be confused, see for yourself:
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In order for McCambridge’s to succeed they needed to show that: (i) they had built up a reputation or goodwill in its bread; (ii) there had been a misrepresentation by Brennans to the public which was likely to lead the public to believe that the bread was McCambridge’s; and (iii) damage had been caused or was likely to be caused by the misrepresentation.
Mr Justice Peart of the High Court ruled in McCambridge’s favour in late November, holding that while Brennans had not intended to imitate or copy McCambridge’s packaging, the packaging was nonetheless likely to confuse customers. He said that the bread consumer’s overall impression of the product was crucial and he had to decide whether a reasonable person wishing to buy McCambridge’s bread would be confused into buying the Brennans product by mistake. Accordingly, he granted an injunction against Brennans to prevent them from continuing to sell their bread but adjourned the case for one week from the date of his judgment, to allow both sides to consider his finding. Most recently in the “bread wars” Brennans has appealed the decision to the Supreme Court. In lieu of this appeal (i) McCambridge’s have only been awarded 40% of its costs; (ii) a stay has been placed on that award of costs; and (iii) Brennans also obtained a stay on the order restraining it from selling its product subject to bringing its appeal as a priority application.
It is unusual in Ireland for an entire High Court order to be stayed in such cases and we will be watching this space to see which of these big bread players are toast in the appeal. In the meantime, I’m feeling rather peckish. Lunch anyone…?
