Brennans wins stay on court order

Bread company Brennans has secured a stay on a High Court order restraining it selling its wholewheat bread in packaging found by the court to be confusingly similar to that of rival company McCambridge.

McCambridge last week secured the injunction which would have required Brennans to remove its bread in its current packaging from shop shelves.

The injunction was to come into effect tomorrow but the Supreme Court agreed today to put a stay on it on condition Brennans undertook to speedily prosecute its appeal against the High Court decision.

Ms Justice Fidelma Macken said the stay was conditional on Brennans advancing its appeal with “all due speed and alacrity”.

McCambridge sells its stone-ground wholewheat bread as a rectangular 500 gram ready-sliced loaf in resealable packaging, with a dark green panel across the front. It brought proceedings against Brennans earlier this year after that company began packaging its own wholewheat bread in similar packaging, also with a green panel across the front.

In his High Court judgment delivered earlier this month, Mr Justice Michael Peart ruled the Brennans packaging was likely to confuse customers but rejected claims Brennans deliberately set out to imitate the McCambridge packaging.

The three judge Supreme Court - comprising Mrs Justice Macken, Mr Justice Liam McKechnie and Mr Justice Joseph Finnegan - granted Brennans a stay on the injunction until its appeal is heard.

John Gordon SC, for Brennans, argued it was entitled to a stay as its product has been on the market for almost a year and in circumstances where the High Court indicated that, up to the conclusion of the hearing before it in July last, McCambridge had not established any discernible damage to it caused by the sale of Brennans bread in its current packaging.

Mr Gordon said Brennans had rolled out its newly packaged product on January 10th last but had not received any complaint from McCambridges until March. It was reasonable for the court to afford him a further stay in circumstances where, if Brennans had to redesign its packaging now, its appeal would become pointless.

Opposing a stay, Anthony Aston SC, for McCambridge, said 12 customers had given evidence to the High Court of having set out to purchase McCambridge bread but having inadvertently ended up purchasing Brennans bread.

If Brennans had been prudent, it could have made contingency arrangements for altering its packaging in the event of losing the case, he said. In passing off cases such as this, an injunction was the only appropriate remedy and damages were inadequate. A stay would “deprive” McCambridges of an effective remedy.

Giving the Supreme Court ruling, Ms Justice Macken said, in a passing off action, it was unusual for two products to have remained on the market for a considerable period of time, early January to the end of November, when judgment was delivered in this case.

In those and other circumstances, the court would grant a stay on the order conditional on Brennans bringing forward its appeal and making an application to the Chief Justice to have the case heard as a matter of priority.