|McCambridge's - the plaintiff in the passing-off action|
|Brennan's - the defendant|
"... if the same customer was to look at and examine the product when in the hand, or indeed again when it is in the shopping basket or trolley, or indeed later again at the checkout area the brand name and distinctive brand colouring of the Brennans product would be observed, and any such customer who wanted the McCambridge product would be able to return the Brennans product and replace it with the McCambridge loaf if it was available on the shelf …”
"For the average shopper therefore, the competing brand name and indeed the distinctive red and yellow brand colours on the Brennans product or other distinguishing features may not be readily and clearly visible when the product is on the shelf. Each product looks almost identical from that angle and vantage point being of the same general shape and size."
|The "Jif" lemon from Reckitt and Coleman v Borden|
- confusion might occur in particular circumstances, such as when the loaves were in disarray and the packaging was not clearly visible;
- it was only in those circumstances, when the labels were not visible, that there was any likelihood of confusion; and
- once the products were in hand and examined, confusion would no longer be possible, in the estimation of the trial judge.
|From this angle, the generic can top |
looks very much like the market leader...
The second element in the passing-off test is that the public has been misled (or is likely to be misled) into believing the defendant's product to be that of the plaintiff as a result of a misrepresentation by the defendant made in the course of trade. In this case, on the findings of the trial judge, members of the public were victims of their own assumptions as to the identity of a product for which they only saw the plain, unbranded, generic package shape. The defendants did not cause this confusion by any misrepresentation on their part. Brennan's undoubtedly adopted some similar label elements and colour schemes, but this did not lead to a misrepresentation which fooled the public.