The High Court has found that the packaging for Joseph Brennan Bakeries’ wholewheat bread was likely to confuse shoppers intending to buy McCambridge bread. It said an injunction should be granted, but left the precise terms of the order to a further hearing and did not decide damages.
McCambridge Limited brought the passing-off claim after Brennans introduced new packaging in 2011. McCambridge said the overall appearance of the bags could lead shoppers to pick up Brennans bread by mistake. Brennans denied that risk, pointing to its red and yellow branding, logo and name on the package. McCambridge also alleged that Brennans had deliberately copied its packaging.
Justice Michael Peart found that McCambridge had goodwill in its product and packaging. He rejected the allegation of deliberate imitation, finding that Brennans had not adopted the design to deceive or confuse customers. But intention was not necessary to decide whether the packaging amounted to passing off.
The judge considered the products from the perspective of a reasonably careful shopper buying bread in an ordinary retail setting. The loaves could be displayed beside one another, and packs might lie flat or be moved around, leaving shoppers unable to see the front panel clearly. The court accepted that the Brennans name and distinctive colours could be seen when a pack was held or examined, but said those differences might not be apparent before it was picked from the shelf.
Peart said bread is usually bought quickly and that this was normal behaviour, not carelessness. He found the packages sufficiently similar in their first overall impression that it would take more care than could reasonably be expected of an average shopper to avoid confusion, particularly when the products were adjacent or close together.
The court said it would grant appropriate injunctive relief to end the risk of confusion. The parties were to be heard on the order’s precise wording. Damages had been deferred until after the injunction question, so the judge made no decision on them at this stage.
McCambridge also sought an injunction under section 71 of the Consumer Protection Act 2007. The Consumer Protection Agency took a neutral position. The judge refused relief under that section, finding that the packaging design, in light of his findings, did not constitute a commercial practice involving marketing or advertising for the purposes of the provision.