The High Court granted Jacob Fruitfield Food Group Limited and Jacob Fruitfield Foods Limited an interlocutory injunction concerning United Biscuits (U.K.) Limited’s McVitie’s figroll packaging, but refused an injunction over its cream cracker packaging.
In a judgment delivered on 12 October 2007, Mr Justice Clarke said Jacobs had established a fair case to try that the McVitie’s figroll packaging risked confusing supermarket shoppers with Jacobs’ product and harming its goodwill. The court was deciding an urgent interim application, not the underlying passing-off claim.
The judge said Jacobs had a prima facie case that its established figroll and cream cracker packaging carried goodwill. For figrolls, he considered the competing packets’ overall appearance, including their colours, the font and presentation of the word “figrolls”, and images of the biscuits. He said the packaging looked remarkably similar, particularly when packets were stacked so that only their sides were visible. The brand logos were small, and the products shared the generic product name “figrolls”, which Jacobs did not claim to own exclusively.
The court’s assessment focused on the likely first impression of a typical, not unduly careful supermarket shopper. On that basis, the judge found a real risk of confusion sufficient to establish a fair case to try. That was not a final finding that passing off had occurred.
For cream crackers, the judge found broad similarities in colour and lettering but also significant differences. Jacobs appeared prominently on three sides of its packaging, while the McVitie’s product’s “cream crackers” wording was distinguishable from Jacobs’ version. He was not satisfied that Jacobs had a fair case to try on that product, so did not assess the remaining injunction factors for it.
United Biscuits argued that the allegedly offending packaging would soon be replaced, that only a small quantity had reached shops, and that an injunction could delay the product launch by about three months and disrupt booked supermarket promotional slots. The judge accepted those points as relevant. He nevertheless concluded that United Biscuits’ loss from a delay could be calculated in damages, while potential harm to Jacobs’ existing goodwill could not be adequately compensated if an injunction were refused and Jacobs later succeeded.
The court therefore found the balance of convenience favoured interim relief for figrolls. It was to hear further submissions on measures to expedite the full hearing. The judgment does not determine the final outcome of the passing-off proceedings.