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IPEC judgment on wet wipe passing off

Written by Ellis Sweetenham on 05 February 2016

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Gama Healthcare Ltd v PAL International Ltd [2016] EWHC 75 (IPEC), [2016] All ER (D) 158 (Jan)

Facts

The claimant (G) and the defendant (P) were involved in the manufacture and supply of clinical wet wipes for the healthcare industry.

G was, as it stood at the time, the market leader for the supply of disinfectant wipes to the NHS.

 It manufactured and sold the wipes, which were supplied in tubs and in plastic flow wraps, using the trade name 'Clinell'. Different colours were used for different types of wipes: green packaging for disinfectant wipes and yellow packaging for detergent wipes.

P sold its wipes under the trade name 'Medipal'.

The claimant (G) brought a claim for passing off, contending that the get-up adopted by P for its disinfectant and detergent wet wipes was so similar to Gama's packaging that it was likely to lead members of the relevant trade to believe that Pal's wipes were those of Gama or connected with it.

The goodwill claimed was in the use of those colours in combination with the colour block design for the front of the packaging.

P denied passing off.

P submitted that G did not have goodwill in its get-up, claiming in particular that the colour coding of the packaging was standard in the industry, so the colours lacked distinctiveness.

It also denied that any misrepresentation would occur in relation to the majority of sales, which were made to the NHS.

Issues

  1. Whether the claimant had goodwill in its get-up of its wipes
  2. Who was the relevant consumer?
  3. Whether the defendant had deliberately sought to pass off its products as those of Gama
  4. Whether there was evidence of actual deception.

Judgment

It was settled law that a claimant alleging passing off had to establish a goodwill or reputation attached to the goods or services which he supplied, meaning that the get-up was recognised by the public as distinctive specifically of the claimant's goods or services

He also had to demonstrate a misrepresentation by the defendant.

As well as this, he had to demonstrate that he suffered damage.

The relevant date for establishing whether a claimant had the necessary goodwill to support its passing off action was the date when the defendant commenced the activities complained of.

Bearing all of the factors in mind, Gama had not proved that it had goodwill in the pleaded get-up of its disinfectant or detergent wipes by the relevant date.

Passing off did not depend upon any intention to deceive, although where such an intention was found, the court would take it into account.

The defendant had intending to reference the claimant's packaging and products, to indicate the nature of the defendant's products as competing with Gama's goods. That had been a decision to live dangerously, not deceive.

The court did not consider that there was a risk of deception amongst a sufficiently substantial number of Gama's customers or potential customers for there to be a real effect on its goodwill. Nor, in all the circumstances, had Pal's products amounted to instruments of deception.

It followed that Gama's had not established a case of passing off.

The case was dismissed.

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