New, high end sun lotion P20 found itself competing with “C20″ in surprisingly similar packaging. But could the judge differentiate the parties’ cases when it came to deciding whether to grant an urgent, “interim” injunction banning C20’s offending get up until trial? Emily Devlin reports.
Who: Riemann & Co v Linco Care Ltd
Where: High Court; Chancery Division, Mr Justice Briggs
When: 14 June 2007
Law stated as at: 28 September 2007
Riemann, the Claimant, is the owner of various registered trade marks for the mark "P20" for sunscreen products, which it sells in distinctive packaging. Pending trial of a claim for trade mark infringement and passing off, Riemann was awarded an interim injunction against Linco, preventing Linco from selling its own once-a-day sunscreen product under the mark "C20" and using a get-up that Riemann argued was redolent of Riemann's packaging.
Why this matters:
The judge in this case had difficulty deciding whether or not to grant the interim relief sought. The Defendant had conceded that the Claimant had an arguable case (although it was not put any stronger than that), and so the judge had to consider whether the "balance of convenience" (as laid down in American Cyanamid) favoured the grant of the relief or not.
In making that assessment, Briggs J heard evidence from the parties to the effect that the market for sunscreen products was confined to the spring/summer months and thus it was critical to both parties to resolve the issue as quickly as possible before their main sales period ended. In particular, the Claimant argued that allowing the Defendant to "free ride" on its goodwill for the 2007 season would allow it to build up an unlawful reputation (or "platform") for the 2008 season.
When it came down to it, the judge felt that the balance of convenience was "marginally" in favour of the Claimant – the risk of irreparable harm to the Claimant was "a little greater". However, in reaching the decision to grant an interim injunction, the judge was also mindful of what he called "fairness" and outlined the effect on both parties if the injunction were granted or withheld. Some might say this is the balance of convenience test otherwise phrased. In Briggs J's words:
"…if an injunction is granted now, then the risks for the party which is successful at trial are broadly balanced where, if it is withheld now, there is an almost complete imbalance in consequences of success or failure at trial… it seems to me that the grant rather than the withholding of interim relief is in a broad and rough sense fairer than its withholding".
This case demonstrates that the Courts will take a commercial and common sense approach when assessing whether interim relief should be granted (what Briggs J calls "fairness"). Manufacturers seeking interim relief should remember that evidence of a cyclical or seasonal sales pattern may be enough to tip the "balance of convenience" in their favour.
The judge also took steps to order a speedy trial (before the end of the year) and a tight timetable to trial, in order that the matter be resolved in good time before the 2008 sunscreen season begins, so watch this space….