Judge serves up ruling in brown bread case

Friday 25 November 2011 22.06
Court found packaging is likely to confuse consumers
Court found packaging is likely to confuse consumers

Bread company McCambridge is entitled to an injunction against rival company Brennans over selling a brown bread product in packaging similar to that used by McCambridge, the High Court has ruled.

The court found such packaging is likely to confuse consumers.

Mr Justice Michael Peart has adjourned to next week his decision on the terms of the injunction to allow both sides consider his finding.

Declan McGrath, for Brennans, said they hoped to address the issue of a stay and other matters in correspondence with a view to allowing Brennans "come into compliance".

In his judgment, the judge found Brennans' packaging was likely to confuse consumers but Brennans had made no deliberate attempt to imitate or copy the McCambridge packaging so as to gain market share or confuse the public.

He believed Brennans and its advisers genuinely believed the placing of the Brennans name and logo and other features on the packaging would avoid confusion, the judge said.

However, the consumers' first overall impression of the products was crucial and he was satisfied it would take more care and attention that 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.

The positioning of the identifiable Brennans colours of yellow and red, its logo, and other distinguishing features did not overcome that risk as such distinguishing features may not be clearly visible to purchasers and in any event do not stand out clearly, he said.

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

Today the judge indicated a view that, up to the time of the hearing before him some months ago, McCambridge had been unable to establish actual loss but also accepted he was addressing the issue of liability only in the hearing before him.

In its action, McCambridge claimed Joseph Brennan Bakeries, trading as Brennans, had set out to intentionally confuse customers of McCambridge by deliberately copying the packaging of a well-established McCambridge brown bread product.

McCambdrige, which sells Irish Stone-Ground Wholewheat Bread as a rectangular 500g ready-sliced loaf in plastic resealable packaging, argued there was a "a confusing similarity" between packaging introduced by Brennans in January last for its whole-wheat sliced bread and that of McCambridge's.

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