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Sunday 19 November 2017

Rival bakers McCambridge and Brennans in dispute over "confusing" packaging

The two wholewheat bread packaged products.
The two wholewheat bread packaged products.

A hearing date has been fixed for April to decide how much money must be paid by a bread company to a rival over the use of "confusingly similar" packaging.

McCambridge is claiming Brennans made profits of more than €600,000 from sales of the wholewheat product wrapped in the disputed packaging but Brennans insist the profit sum is considerably smaller that that.

Mr Justice Peter Kelly was told yesterday both companies have prepared legal questions addressing quantification of the exact extent of Brennans' liability and he fixed April 29 for a hearing on those matters.

The court's decision on the legal issues will determine how much Brennans' must pay.

Last month, the judge noted the brownbread 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. "It's not Brennans bread today, it's Doyle's bread," he observed.

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 month, Mr Justice 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 account 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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