A Supreme Court judge who disagreed with the majority said a bread packaging dispute should not have been decided on the possibility that shoppers might confuse two products. Mr Justice Fennelly would have allowed Joseph Brennan Bakeries’ appeal and dismissed McCambridge Limited’s claim.
His judgment, delivered on 31 July 2012, was a dissent. He said the central question was whether the trial judge had correctly applied the legal principles to the facts. The source does not state the majority’s decision or the final order of the Court.
McCambridge alleged that Brennan had changed the packaging of its wholemeal bread to make it confusingly similar to McCambridge’s. Its complaints included the use of green colouring, white writing on green, overhanging script, a wheat image and similarities in the overall colour scheme.
Fennelly said the packaging had to be assessed as a whole. He pointed to Brennan’s yellow and red logo, which he described as a traditional distinguishing feature on its products. In his view, it was a conspicuous difference that could not be ignored while considering similarities such as the green panel.
The trial judge had found that loaves were often displayed on open shelves and might be moved during the day, leaving only their ends or sides visible. From that viewpoint, the products could look almost identical because they shared a general shape and size. The judge also heard evidence from a small number of Brennan customers who said they realised at home that they had bought Brennan bread when they had intended to buy McCambridge. He said he did not doubt their sincerity.
Fennelly accepted that shoppers commonly choose bread quickly and with limited scrutiny. But he said the trial judge’s analysis did not explain how Brennan’s packaging caused a shopper to believe its loaf was McCambridge’s. If the shopper had not seen the front panel, Fennelly reasoned, that panel could not have caused the mistaken belief.
He said passing off required more than a risk of confusion: the claimant had to show that the defendant’s presentation led, or was likely to lead, the public to believe its goods were the claimant’s. He considered that the trial judge had set the threshold too low by focusing on confusion without identifying the necessary misleading imitation of McCambridge’s distinctive packaging.
The judgment records Fennelly’s proposed outcome only. It does not set out the majority’s reasoning or the Court’s final disposition.