Shelf Wars: Sainsbury’s Takes On Diageo

Archbishop Passing Off is already robing up behind the drinks counter to enter the unholy fray with his 'holy trinity' of Reputation, Confusion and Damage, but who will survive the refining fire of this test?

Is Sainsbury's passing off its Pitchers product as that of Diageo? Is there a trade mark infringement?

Surely, no problem with Reputation. Pimm's has established itself globally as an iconic brand, synonymous with Wimbledon, Henley, May Balls, picnics (see Twitter #VTPP) and all that is sacred about the British Summer.

And, surely, no issue with Damage. One can almost see the out-stretched hand of the thirsty British consumer wavering and submitting momentarily to curiosity, as well as the lower price tag of the Sainsbury's 'equivalent' - with huge consequential loss for Diageo.

So the legal armies must face each other on the uncertain legal battlefield of Confusion. But is there really any Confusion? The name is similar and the Sainsbury's product clearly echoes (deafeningly!) the Pimm's brand - but we are not talking puffins and penguins here. The product is pretty obviously not the original, although it is clearly trading off its reputation.

It is to be hoped that the tort of passing off is sufficiently flexible to achieve the only just result.

The 'Jif Lemon' case historically established that an iconic 'get-up' will be protected in passing off. Misrepresentation can be imputed by similarity, regardless of difference. The likelihood of some confusion is surely enough.

So what do you think?

Pitchers or Pimm's ...Who will take Match Point?

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http://www.silvermansherlikerblog.com/pitchers-pimms-passing-off-getup

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