Brennans recently lost their appeal against a High Court ruling that its brown bread packaging was confusingly similar to that used by competitors McCambridge. In its ruling on 31st July 2012, the Supreme Court by a majority of four to one ordered Brennans to change their packaging within 48 hours despite a request of four weeks by Brennans to be allowed to do so.
In a High Court ruling last year, the High Court held that the packaging, introduced in January 2011, was confusingly similar to that used by rivals McCambridge on their 500 gramme Irish ‘stone-ground wholewheat bread’.It was claimed Brennans were “passing off” its bread as that which is produced by McCambridge.
In simple terms “passing off” prevents a trader from selling goods to the public in such a way as to deceive consumers into believing that they are those of his competitor.
Giving the majority judgment in the Supreme Court, Mr Justice John MacMenamin said he was satisfied the tests for passing off had been met and the High Court judge was therefore correct in his decision. He ruled that McCambridge had built up a reputation in its bread and that Brennans had made a misrepresentation to the public which was likely to lead the public to believe that Brennans bread was in fact McCambridge’s bread. Finally as a result of the misrepresentation, it was likely that damage has been caused.