Thursday 24 October 2019

Man who sold Tayto from the Republic in the North faces having to pay damages for breaching copyright

Alan Erwin

A man who sold Tayto from the Republic to shops and pubs in the North was breaching the trademark of Northern Ireland crisps giant Tayto, the Belfast High Court has heard.

Mark Ferris may now be liable for damages after the infringement was accepted at the High Court in Belfast.

The case highlights the strict commercial distinctions between the two famous brands with histories stretching back over more than 60 years. In the Republic Tayto is owned by Tayto Snacks. The Ashbourne-based business, founded by well-known businessman Ray Coyle, is owned by German giant Intersnack, which bought the last of Mr Coyle's shares in 2015.

In the North, Tayto (Northern Ireland) Ltd is a manufacturer of crisps and corn snacks based in Tandragee, Co Armagh, Northern Ireland. It employs 300 people in Tandragee, Co Armagh, and is the third-biggest crisp and snack business in the UK.

Mr Tayto
Mr Tayto

The sole trader from Co Down claims he only made around £500 profit from selling Tayto crisps manufactured in the Republic to shops and pubs north of the border, a judge was told.

His lawyer argued that the Northern Ireland company was "using a very large sledgehammer to crack a very small nut" in seeking a further hearing to examine any potential financial compensation.

But counsel for the firm - based in Tandragree, Co Armagh - insisted it was about protecting its trademark.

According to Peter Hopkins action was only taken against Mr Ferris after he was sent four letters warning him to stop selling the Irish brand.

"One misconception is the impression given, to put it colloquially, that he was some innocent abroad," the barrister said.

"It was a breach of the law, and two separate companies trading north and south."

Tayto Northern Ireland issued trademark infringement proceedings against Mr Ferris, trading as Candy Plus.

The case related to his alleged sale of Tayto crisps from the Republic at locations in Belfast and elsewhere.

Mr Justice Huddleston was told Mr Ferris has operated a business from his home over the last three years, selling confectionery, snacks and drinks.

His barrister, Kevin Morgan, confirmed the breach was admitted, but stressed that no counterfeit goods were involved.

"The southern Tayto were legally purchased by him in the Republic of Ireland," counsel maintained.

Questioning why action was taken against his client, Mr Morgan argued that the same crisps are being sold throughout Northern Ireland.

He described Mr Ferris' business as "miniscule" when compared to Tayto Northern Ireland

"In the last year he estimates that he earned £21,000 in profits; by comparison the plaintiff has been estimated in the recent past to have a turnover of £185 million and is the third-largest snack manufacturer in the UK," the lawyer said.

Mr Morgan claimed that a public judgment against the defendant would be more valuable to the crisps company than a prolonged investigation into what profits Candy Plus made from selling Irish Tayto.

He also disclosed that his client was willing to make a £600 payment as part of any settlement.

However, the court heard it was being wrongly portrayed as a "David and Goliath" case.

Mr Hopkins challenged the lack of evidence to back assertions Mr Ferris only made £500 profit from the trademark infringement.

Entering judgment for Tayto Northern Ireland, Mr Justice Huddleston said: "I fully accept this case is not at the higher end of the scale of either culpability or breach, but nonetheless it's a breach and for that consequences do follow."

Awarding costs to the company and remitting the case to a High Court master for further financial examinations, he added: "Until there's an assessment of damages or an account of profits we are at a loss."

Belfast Telegraph

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