Brennans given 48 hours to remove packaging

Brennans the bakers were yesterday given 48 hours to change packaging on one of their brown bread products following a Supreme Court ruling.

The bread company yesterday lost an appeal against a High Court decision that the packaging, introduced in Jan 2011, was confusingly similar to that used by rivals McCambridge on their 500g Irish “stone-ground wholewheat bread”

McCambridge, of Rathcoole, Dublin, obtained High Court orders preventing Joseph Brennan Bakeries from using similar packaging on a similar wholewheat product.

It was claimed Brennans were “passing off” its bread as that produced by McCambridge and had intentionally set out to imitate the packaging of its product and make it confusingly similar to the McCambridge loaf in a resealable bag.

In Nov 2011, the High Court granted McCambridge an injunction. Brennans appealed to the Supreme Court which heard the case last month.

In a four-to-one majority decision, the Supreme Court yesterday dismissed the Brennans appeal.

The court rejected an application from lawyers for Brennans that they be given four weeks to change the packaging on the bread. Chief Justice Susan Denham put a stay on the court’s order for only 48 hours, which means the packaging will have to be changed by then.

Giving the majority judgment, Mr Justice John MacMenamin said he was satisfied that the tests for passing off had been met and the High Court judge was therefore correct in his decision.

He was not persuaded by Brennans that the trial judge had erred in law by choosing the wrong “hypothetical consumer” as being the point of reference when deciding there was a risk of confusion about the products.

The trial judge has applied a standard of a reasonably prudent shopper, who is not in any particular hurry, and neither overly scrupulous nor dilatory, when going out to buy the McCambridge product, said Mr Justice MacMenamin.

It was not necessary to establish, as Brennans had argued, that a substantial number of shoppers were actually deceived by their product. The test is not dependent on numbers and it is sufficient to show that the product was marketed in such a way that they were “calculated to deceive”, he said.

In relation to damage to goodwill or reputation, Mr Justice MacMenamin said the evidence showed McCambridge had actually sustained some loss of trade as a result of people buying the Brennan’s bread.

In his dissenting judgment, Mr Justice Nial Fennelly said the trial judge did not describe how the act of passing off by Brennans caused the confusion.

No trader has a monopoly on the use of any particular shape or size, colour or combination of words on a product, other than where it is a registered trade mark, he said.

The Chief Justice, along with Mr Justices Adrian Hardiman and Mr Justice Frank Clarke, agreed with Mr Justice MacMenanmin’s judgment.


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