Hot on the heels of the infamous Colin v Cuthbert caterpillar cake saga comes another interesting Intellectual Property case involving a supermarket own brand product; this time Lidl’s ‘Hampstead’ gin.
The owners of the Hendrick’s gin brand recently secured an interim interdict (broadly equivalent to an interim injunction in Northern Ireland) from the Court of Session in Edinburgh preventing Lidl from selling their product in Scotland until a full trial has been held.
The pursuers in the case, William Grant & Sons Irish Brand Limited, are the owners of a UK trademark which depicts the shape of the Hendrick’s gin bottle bearing a diamond-shaped label. Lidl’s product was given a makeover in December 2020 and the new packaging caught the attention of the pursuers, who raised proceedings alleging trademark infringement and passing off.
An application for interim relief was granted on the basis that there was a prima facie case of infringement under section 10 (3) of the Trademarks Act 1994. This provision protects against use of a sign that takes unfair advantage of or is detrimental to the distinctive character or reputation of a registered mark.
The judge was not persuaded that there was a prima facie case of infringement under section 10 (2) which requires evidence of a likelihood of confusion on the part of the public as to the origin of the product, nor did he feel that there was prima facie evidence of the misrepresentation element of a passing off claim. Of course, this could change once the issues are fully ventilated before the Court at trial.
For the time being, those in the #TeamColin camp may well be feeling buoyed by this decision given the similarities between the cases…
Editorial prepared by: Kirsten Magee, Partner, Mills Selig
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