Bread company Brennans set out to intentionally confuse customers of rival McCambridge’s by deliberately copying the packaging of a well-established McCambridge brown bread product, the Commercial Court was told today.
Michael McCambridge, chairman of McCambridge’s Ltd made the claim at the opening of proceedings by his company, alleging “passing off” by Brennans in the packaging of a stone-ground wholewheat bread product.
The court heard a McCambridge bakery first opened in 1945 in a grocery store in Ranelagh, Dublin, and remained in business until 1985 after which John McCambridge began a business of brown bread and ice cream.
The bread business prospered and McCambridge’s is now the leader in the tradition section of the bread market with a 30 per cent share.
Jospeh Brennan Bakeries, trading as Brennans, is the overall bread market leader in the State, the court also heard.
Mr Justice Michael Peart was today shown an array of brown bread products made by McCambridge’s, Brennans and other companies, most in resealeable clear packaging.
In reply to the judge, Mr McCambridge said his concern was that people who normally buy McCambridge’s product would be confused by the Brennans packaging and buy the rival product by mistake. He was also concerned new customers would choose the Brennans product thinking it was McCambridge’s.
McCambridge Ltd, with registered offices at Rathcoole, Co Dublin, claims Brennans has infringed its copyright in its bread packaging and is “passing off” its bread as that maunfactured by McCambridge. Brennans denies the claims.
McCambridge’s claims it is “widely known” for its “highly popular Irish Stone-Ground Wholewheat Bread sold as a rectangular 500 gram ready-sliced loaf in plastic resealable packaging”.
That product is made from a unique recipe in the McCambridge family for generations and sold for about 50 years, it is claimed.
Outlining the case today, Anthony Aston SC, for McCambridge, argued there was “a confusing similarity” between the packaging introduced by Brennans in January last for its wholewheat sliced bread and that of McCambridge’s.
The similarity was particulary evident when the two products were viewed side by side with the front facing out on supermarket shelves, he said.
Counsel said Brennans accepted McCambridge’s has a good reputation but contended its packaging was "sufficiently distinctive" from the McCambridge product. His client disputed that and had witness statements from consumers who reported confusion.
In evidence, Michael McCambridge told Mr Aston, while Brennans claimed it had set out to distinguish its product from the McCambridge one, it had “spectacularly failed” to do so. Given the fact that Brennans is the leader in the overall bread market, it was surprising it had not used its yellow and red livery more in the packaging, he said.
Cross-examined by John Gordon SC, for Brennans, Mr McCambridge disagreed there was “a noticeable difference” between the packaging used by Brennans and that of his company, including the use of the Brennans yellow and red logo on the Brennans product.
He agreed the disputed Brennans product was launched in January last, he saw it in a supermarket that month and did not make a complaint until March last. He disagreed there was a “relatively noisy” arrival of the Brennans product, and said he had not complained until March because he was concerned he had a subjective view.
He complained after receiving calls about it and discussing the matter. He disagreed the number of complaints was “statistically insignificant”.
He agreed surveys of bread consumers last March showed price was an increasing consideration for bread consumers, as was quality.
He agreed, until early 2010, several other brands of wholewheat bread, including Brennans, tended to be more expensive than McCambridge’s. He thought the lowering of Brennans price was about concurrent with the new packaging.
McCambridge’s claims its bread was sold in distinctive packaging throughout its history and the packaging in which it is now sold had been in use since early 2008.
About 25 million loaves were sold between 2008 and 2010 in the new packaging, and sales revenue over those years was in excess of €22 million.
Brennans also sold a sliced wholewheat brown loaf for the last 12-14 years.
McCambridges’ claims Brennans from 2008 began a process of “deliberate mimicking” of the McCambridge product and on January 24th last produced a “look-alike” product.