The owners of established brands often complain that trade rivals are mimicking the get-up of their products and trading on their hard-won reputations. As a High Court ruling in the context of the premium vodka market showed, however, proving such allegations can be a demanding task.
The case concerned a brand of vodka, annual sales of which had grown from almost nothing to in excess of £40 million over a period of just five years. Its manufacturer launched a passing off claim against the company behind a recently launched rival brand. In seeking a pre-trial injunction against the rival, the manufacturer asserted that the get-up of the latter's bottles was so strikingly similar to its own as to cause confusion amongst consumers.
Ruling on the matter, the Court found that the manufacturer had raised a serious issue to be tried as to whether unfair advantage was being taken of its reputation in the marketplace, the product of a multi-million-pound marketing campaign. Amongst other similarities, the Court acknowledged that the shape and dimensions of the rival's bottles were very close to those of the manufacturer's.
There were, however, also differences in their get-ups. The names of the two brands appeared prominently on their respective bottles and the Court noted that it is unusual for consumers to rely upon the appearance of a product alone, as opposed to its name, as indicating trade origin. Evidence of actual consumer confusion between the two products was, at best, inconclusive.
In refusing to grant the injunction sought, the Court found that the arguments were, at this stage of the proceedings, finely balanced. Given the harm that such an order would be likely to cause to the rival's business, the balance of convenience came down in its favour. In directing a speedy trial of the manufacturer's claim, the Court noted that the rival's success in fending off the injunction application did not necessarily mean that its defence would ultimately prevail.