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Summary: Whether or not the sale of own-brand items directly targeted at a market leader and packaged and marketed in a similar way amounts to passing off and an infringement of trade marks.
The plaintiff, a major biscuit manufacturer, sought injunctive relief and damages for passing off and trade mark infringement against the defendant, a national supermarket chain. The plaintiff's product was a chocolate biscuit known as a Penguin and the biscuit launched by the defendant in competition was given the name Puffin. The defendant counter-claimed for revocation of the plaintiff's trade marks under s.46(1)(b) of the Trade Marks Act 1994. The two products compared were said to be of the same size and shape and to have used comparable, though not identical, materials in the packaging, but in the opinion of the judge this did not have a striking impact.