The High Court has found that Nualtra Limited’s use of the NUTRIPLEN mark infringed Aymes International Limited’s registered NUTRIPLETE trade mark. Mr Justice Twomey ordered an injunction against Nualtra’s use of NUTRIPLEN in trade for dietetic food and substances adapted for medical use, and awarded the plaintiffs €35,000 in damages.
The judgment, delivered on 2 May 2017 after a 10-day hearing, concerned oral nutritional supplements sold by Nualtra under the NUTRIPLEN name from November 2012. The court treated the goods covered by the competing marks as identical for the infringement assessment, although neither Aymes nor the previous owner had sold products under NUTRIPLETE.
The judge found the marks very similar visually and aurally, and somewhat similar conceptually. NUTRIPLEN and NUTRIPLETE share the first eight letters, and the court said they were aurally identical in French. Although the products were used under medical supervision and consumers were likely to be particularly attentive, the court concluded there was still a likelihood that end-users would mistake NUTRIPLEN products as coming from the same undertaking as NUTRIPLETE. The relevant public included end-users as well as healthcare professionals.
Nualtra had rebranded its products as Altraplen in the UK by April 2016 and in Ireland the following month. Its chief executive told the court that the company did not intend to return to NUTRIPLEN, but it had not given the undertaking sought by the plaintiffs. The court said the rebranding and the company’s stated intentions did not prevent it from granting an injunction after finding infringement.
The court also addressed Aymes’s earlier conduct. The judgment recounts that Aymes admitted sending an anonymous letter to UK GPs and an email purporting to come from the NHS, both containing false allegations about Nualtra. Nualtra’s related defamation and unlawful-interference counterclaim had already been settled for €101,000 plus legal costs. The judge said the remaining issue was the trade mark claim and that the misconduct did not affect the infringement decision.
The plaintiffs’ expert estimated a hypothetical licence fee of about €260,000 for NUTRIPLETE’s use from November 2012 to April 2016. The judge rejected that valuation and declined to permit a further account-of-profits hearing, noting evidence that Nualtra had made no profit from the products and the substantial court time and legal costs already incurred. The court instead fixed damages at €35,000. The judgment records Nualtra’s evidence that its defence had cost about €1.3 million.