Copycat Bread War - Commercial Court Decision On Packaging Get-Up

Author:Mr Alistair Payne and Gerard Kelly
Profession:Matheson Ormsby Prentice

The Irish Commercial Court has recently determined the much publicised dispute between two Irish brown bread manufacturers on product packaging get up. In McCambridge Limited V Joseph Brennan Bakeries, Mr Justice Peart held that the Defendant, Brennans Bread, had committed passing-off in respect of the packaging of its whole wheat brown bread product notwithstanding a lack of intention to do so. The finding of passing-off was also made notwithstanding the prominent use of distinctive branding elements on the part of the Brennans Bread. The case concerned two very well known Irish bread producers. The Plaintiff, McCambridge, has been dominant in the Irish whole-wheat brown bread market for the last 50 years or so. Brennans Bread, the Defendant, is one of the largest and well known manufacturers of bread in Ireland being in operation for many years but only more recently entering the wholewheat brown bread market. Having traded for so long, Brennans Bread has become synonymous with red lettering on a yellow background on its packaging. Earlier this year, Brennans Bread introduced new packaging for its wholewheat bread brown product, which the Plaintiff's contended resembled its own packaging to the extent that customers would buy the Brennan Bread's product in error.

The McCambridge packaging has been in use since 2008 and comprised a clear plastic re-sealable bag "with distinctive graphic elements thereon such as a sheaf of wheat and the McCambridge name in italics, as well as distinctive colouring, the most significant being a dark green panel, appearing on the front of the bag". Mr Justice Peart was satisfied that McCambridge, as a result of its dominant position, had acquired a public association with the packaging used by it. However, McCambridge was not held to have any proprietary rights as such over the type of re-sealable bag, its shape or the shape/size of the loaf of bread.

A comparison of the two products at issue in the case is set out in the photograph below:

Mr Justice Peart heard evidence on how Brennans Bread came to procure its packaging and was satisfied that there was no intention on the part of Brennans Bread to deceive the public. Brennans Bread relied upon the prominent use of the yellow and red colouring on its packaging which was readily identifiable by the public as associated with Brennan Bread's products.

McCambridge on the other hand argued that the overall appearance or "get-up", particularly when placed...

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