The Court of Appeal has allowed Galway Free Range Eggs Limited’s appeal in a passing-off dispute and held that it is entitled to an injunction restraining Kevin O’Brien, Carmel O’Brien and Hillsbrook Eggs Limited from trading under the name “O’Briens of Galway Free Range Eggs”. The judgment, delivered by Ms Justice Costello on 22 January 2019, did not decide the separate trademark infringement claim.
The company began selling eggs as “Galway Free Range Eggs” in 1992 and was incorporated in 1994. The judgment said it built substantial goodwill in that name in Galway and the West of Ireland. The O’Briens had supplied eggs to the company until 2012. They later began selling eggs through Hillsbrook Eggs under the disputed name. The company issued proceedings in 2013.
The High Court dismissed the company’s claim in 2016, finding that it had not established misrepresentation leading to confusion between the parties’ egg boxes. On appeal, the company argued that the trial judge had focused too heavily on packaging and the word “Galway”, rather than its case about goodwill in the full brand name. It also challenged the treatment of survey evidence.
The Court of Appeal found that the trial judge had failed to decide whether the company had goodwill in its brand name and had mischaracterised the case as one primarily about packaging. It held that the legal requirement to label cartons as containing free-range eggs did not require the respondents to include those words in their brand name.
Both sides had introduced surveys. The appellant’s survey questioned 200 shoppers outside three Galway shops in 2013; the respondents’ survey was conducted online in 2016. The appeal judgment said both surveys indicated that a significant minority considered the brands capable of confusion. It held that survey evidence was admissible and should be assessed for its weight, including in light of the surveyed group and methodology. The High Court had erred by dismissing the appellant’s survey evidence without that assessment.
The Court of Appeal also held that the company did not need to prove actual damage to obtain injunctive relief for passing off. It concluded that the company had established the relevant goodwill and likelihood of a public impression of connection between the businesses. The court allowed the appeal and held the company entitled to an injunction. It left the trademark infringement issues for determination in a future case.