Dalgety Spillers Foods Ltd v Food Brokers Ltd and Others
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1993 |
| Date | 24 November 1993 |
| Court | Chancery Division |
Chancery Division
Before Mr Justice Blackburne
Injuction - passing-off action - behaviour of parties relevant
When a judge was exercising his discretion whether or not to grant an injunction in a passing-off action, he was entitled to take into account the behaviour of the parties as well as assessing the balance of convenience.
Mr Justice Blackburne, sitting in the Chancery Division, refused to grant the plaintiff, Dalgety Spillers Foods Ltd, an interlocutory injunction restraining the defendants, Food Brokers Ltd, Nissin Foods BV and Nissin Shokuhim KK, from importing, advertising, exposing for sale or supply, selling or supplying or otherwise dealing in any snack soup or other snack product in any container in the same shape or form as the plaintiff's "Pot Noodle" range of products.
Mr John Baldwin, QC and Miss Fiona Clark for the plaintiff; Mr Geoffrey Hobbs, QC and Mr David Kitchin for the defendants.
MR JUSTICE BLACKBURNE said that in 1989 and 1990 the defendants and the plaintiff had entered into discussions on a possible joint venture agreement for the supply of the defendants' "Cup Noodles" product but those came to nothing.
On October 21, 1992, the defendants, on the advice of leading counsel, had frankly written to the plaintiff, inter alia, that they had set up a Dutch company to manufacture Cup Noodles for supply to the United Kingdom and enclosing sample containers.
That letter was acknowledged but never answered. The defendants had launched their Cup Noodles in England on September 4, 1993.
The plaintiff issued a letter before action on September 30 and on October 12 both its writ and its notice of motion claiming injunctive relief, supported by affidavit evidence, both from experts and from members of the public. Mr Hobbs had contended both to be inadmissible because it was for the court alone to decide whether the get-up of a product was calculated to deceive. A number of authorities, not all easy to reconcile, had been cited, from which his Lordship drew four conclusions:
1 There was no absolute rule against admitting evidence as to whether the matter complained of was calculated to deceive;
2 Where the goods were of a kind sold, not to the general public but in a specialist market, evidence of persons accustomed to deal in that market was admissible;
3 In cases where the goods were of a kind sold to the general public for consumption...
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