Business Irish

Sunday 17 December 2017

Baker Brennans appeals bread packaging decision

Tim Healy

BRENNANS the bakers has appealed against an injunction preventing them using a packaging on one of their bread products which the High Court found was confusingly similar to that of a rival.

Last year, McCambridge bakers, of Rathcoole in Dublin, obtained High Court orders preventing Joseph Brennan Bakeries from using similar packaging on a similar wholewheat bread product which both companies bake.

McCambridge claimed Brennans was "passing off" its bread as that which is produced by McCambridge and had intentionally set out to imitate the packaging its product and make it confusingly similar similar to the McCambridge 500gramme Irish stone-ground rectangular loaf in a resealable bag.

In November, Mr Justice Michael Peart found the Brennans packaging, introduced in January 2011, was likely to confuse consumers and McCambridge was entitled to appropriate injunctions to prevent this.

Mr Justice Peart was satisfied it would take more care and attention than could be reasonably attributed to the average shopper to avoid confusion between the McCambridge and Brennans products when observed on the shop shelf.

Today, a five-judge Supreme Court heard an appeal brought by Brennan's against that decision. McCambridge Ltd opposed the appeal.

The court reserved its decision for a month.

In its appeal, Brennans argued Mr Justice Peart had erred in his application of the test for "passing off" by failing to distinguish between a risk of confusion and the requirement to prove the existence of misrepresentation even though the judge had not found a misrepresentation on behalf of Brennans.

He had also erred by applying the wrong test of confusion in that such a test is applied to "ordinary, sensible members of the public, not careless persons who do not take any reasonable care" when buying products like these, it was claimed.

The trial judge was also incorrect in finding a risk of confusion based on similarity of elements of Brennan's packaging that were functional, generic and/or common in the trade, it was claimed.

In his submissions on behalf of Brennans, John Gordon SC, said Mr Justice Peart based his decision that there was confusion on a narrow ground that if loaves of bread were tossed around the shelves, or were lying flat, the customer would not be able to distinguish between the two products.

The consumer who finds the product lying flat on the shelf would not be confused because when they pick it up to identify it, it is possible that it may be one of three or four other products, counsel said. Shoppers usually check sell-by dates and it would be impossible not to see the Brennan's date without noticing it was a Brennan's product.

Since 2010, another baker, Irish Pride, have entered this area of the market with a similar wholemeal bread with a resealable bag, Mr Gordon said.

Not only was this in competition with McCambridges but McCambridges was actually baking the Irish Pride product showing they agreed to further competition, he said.

Overall, there are now about 25 different versions of this wholemeal bread on sale in the State, he said.

He also argued that there was no evidence of serious confusion in the market as there were only 17 complaints about the Brennan's product - a tiny fraction out of a total of more than four million loaves which had been sold by McCambridge up to last July.

Anthony Aston SC, for McCambridge, said the fact that his client provided the product sold by Irish Pride showed McCambridge was not afraid of competition. "What they do not like is unfair competition," counsel said.

Mr Aston strongly disputed Brennan's claims that the trial judge had applied the wrong test of confusion in his decision. He also disagreed with Mr Gordon that the judge had got it wrong by finding the "general get-up" of the Brennan's packaging was sufficiently similar to cause confusion.

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