The High Court has dismissed Galway Free Range Eggs Limited’s claim for a permanent injunction against Kevin O’Brien, Carmel O’Brien and Hillsbrook Eggs Limited, finding that the company had not established confusion between their free-range egg products.
The judgment, delivered by Mr Justice Tony O’Connor on 12 May 2016, concerned the defendants’ use of “Galway” on their packaging and promotions. The plaintiff alleged passing off and breach of its trademark. Its claim had been limited to permanent injunctive relief.
The plaintiff used a white box with a rising sun and the words “Galway Free Range Eggs”. The defendants’ box was yellow, with a maroon label, a Galway crest and a picture of hens on Mr O’Brien’s farm. The court noted that regulations required egg boxes to identify whether eggs were free range, barn or from caged hens.
The court accepted Mr O’Brien’s account of a 2012 conversation in which, it found, the plaintiff’s director said the company did not own the word “Galway”. Mr O’Brien was described as honest and fair in his recollection. The court also found no intention by the defendants to benefit unfairly from the plaintiff’s brand, and said they competed strongly on price.
The plaintiff relied on a 2013 survey of 200 shoppers outside three Galway shops. Thirty-eight per cent said the two brands could be confused. The court gave little, if any, weight to the survey’s conclusion, noting that two shops did not stock the defendants’ eggs and that the plaintiff had not produced further brand research. A defence survey in 2016 found that 57 per cent of 97 respondents said the brands could not be confused; the court also noted that the instructions and information given to the surveyors were not fully identified.
The judge said the evidence about confusion was “tenuous and unreliable”. No shopper or independent retailer testified that the packaging or GAA promotions had caused confusion. The court found the plaintiff had failed to establish misrepresentation leading to confusion and said the suggestion had not resulted in damage to its goodwill or reputation.
On the trademark claim, the court held that the plaintiff had not shown that the defendants’ use of their own name and Galway as geographic origin was inconsistent with honest practices. The judgment records that the plaintiff had undertaken to withdraw its 2014 registration of the business name “O’Brien’s Free Range Eggs”; the plaintiff had not traded under that name, and the defendants sought no damages over the registration. The judgment concludes by rejecting the plaintiff’s claims. It does not set out a separate formal order concerning the undertaking.