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Saturday 30 August 2014

Rival bakeries Brennans and McCambridge reach settlement

Judge remembers McCambridge was the wronged party in case over "confusingly similar" packaging

Published 27/05/2014 | 19:36

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A DISPUTE over how much money must be paid by Brennans Bakeries to rival firm, McCambridge, over "confusingly similar" packaging on a brown bread product has been settled at the Commercial Court on undisclosed terms.

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The settlement was announced to Mr Justice Peter Charleton today but no details were revealed.

The judge, who had conducted a hearing earlier this month concerning the correct approach to be taken when adjudicating an account of profits when a defendant is found liable for passing off, also delivered his detailed judgment yesterday concerning that issue.

Among several principles set out in his judgment, the judge said a broad approach to apportioning profits should be taken by a court, remembering McCambridge was the wronged party.

Because of the settlement, there will be no need for a further court hearing when the approach outlined by the judge would have been implemented.

McCambridge had claimed Brennans made profits of more than €600,000 from sales of the wholewheat product wrapped in the disputed packaging but Brennans insisted the profit sum was considerably smaller that that.

Last month, the court heard the brown bread product at the centre of the legal battle was actually manufactured by another company, Doyle's Quality Products Ltd, and delivered fully packaged to Brennans. 

Brennans has 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.

McCambridge's initiated its action three years ago 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, in July 2012, the Supreme Court dismissed Brennans' appeal by a four/one majority and ordered it to change the packaging on the product at issue.

Last March, Mr Justice Peter 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 when it 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.

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