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Court of Appeal allows appeal of High Court order dismissing a claim for passing off goods (free range eggs) and grants an injunction restraining trading under the disputed name, finding that: a) the appellant had established substantial reputation and goodwill in its brand name, which was infringed by the defendant; b) the regulatory obligation (to include the words free range) could not justify the inclusion of those words if it would result in passing off; and c) the trial judge erred in dismissing survey evidence on the basis that it was of no probative value, especially where there was no evidence to the contrary.
Passing off – appeal of High Court order dismissing a claim for passing off goods as the goods of the plaintiff – European Communities (Marketing Standards for Eggs) Regulations 2009 (S.I. Number 140/2009) – Article 12 of Commission Regulation (EC) Number 589/2008 of 23rd June 2008 – failure to rule on the appellant’s claimed reputation and goodwill – misconstruction of the appellant’s case – High Court judge erred in failing to apply the test of misrepresentation correctly – combination of words “Galway Free Range Eggs” – trial judge was in error in failing to recognise the limitation of the legal requirement to mark the packaging in accordance with the regulations – treatment of the survey evidence – judge’s conclusions on the likelihood of confusion – proof of damage to the appellant’s goodwill or reputation – appeal allowed.
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