Bread packaging case adjourned

The High Court has ruled bread company McCambridge's is entitled to an injunction against rival company Brennans over selling a brown bread product in packaging similar to that used by McCambridge's after the court found such packaging is likely to confuse consumers.

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

Declan McGrath, for Brennans, indicated while his side was not in a position as of now to give undertakings that sales of the product will cease, it was 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 today, while finding the Brennans' packaging was likely to confuse consumers, the judge also found Brennans had made no deliberate attempt to imitate or copy the McCambridge's packaging so as to gain market share or confuse the public.

The judge said he believed Brennans and its advisers genuinely believed the placing of the Brenanns name and logo and other features on the packaging would avoid confusion. However, his concern was the overall appearance of the Brennans product on first impression and especially when viewed on a shop shelf.

McCambridge's had brought the injunctive proceedings against Brennan's pending the outcome of a full hearing when other issues, including whether McCambridge's is entitled to any damages, will be addressed.

The judge has indicated, up to the time of the hearing before him some months ago that McCambridge's 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's claimed Joseph Brennan Bakeries, trading as Brennans, had set out to intentionally confuse customers of McCambridge's by deliberately copying the packaging of a well-established McCambridge brown bread product.

McCambridge Ltd, with registered offices at Rathcoole, Co Dublin, claimed Brennans has infringed its copyright in its bread packaging and is "passing off" its bread as that manufactured by McCambridge.

McCambridge's, which sells Irish Stone-Ground Wholewheat Bread as a rectangular 500 gram ready-sliced loaf in plastic resealable packaging, argued there was a "a confusing similarity" between packaging introduced by Brennans in January last for its wholewheat sliced bread and that of McCambridge's. Brennans denied the claims and contended its packaging was sufficiently distinctive from the McCambridge product.

Today, Mr Justice Peart said the bread consumer's first overall impression of the products was crucial.

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's 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.