AU Vodka Ltd v NE10 Vodka Ltd & Anor [2022] EWHC 2371 (Ch) (21 September 2022)

AU Vodka Ltd v NE10 Vodka Ltd & Anor [2022] EWHC 2371 (Ch) (21 September 2022)

The claimant established a serious issue to be tried on passing off, but the evidence did not support a likelihood of widespread deception or irreparable harm pending trial. Any damage to the claimant could be adequately compensated by damages and an injunction at trial. Conversely, an interim injunction would cause disproportionate harm to the defendants, who had already launched their product and built business momentum. The balance of convenience favoured refusing interim relief and proceeding to an expedited trial.

Citation
[2022] EWHC 2371 (Ch)
Parties
Claimant: AU Vodka Limited; First Defendant: NE10 Vodka Limited; Second Defendant: Leon Hogan
Jurisdiction
England and Wales
Judgment Date
21 September 2022
Procedural Posture
Interim Injunction Application in Passing Off Claim / Interlocutory (application for Interim Relief)
Outcome
Interim injunction refused; application to strike out second defendant refused; expedited trial ordered.
Legal Topics
Passing Off, Interim Injunctions, Get Up/trade Dress, Balance of Convenience, Adequacy of Damages
Intellectual Property Commercial Law Passing Off Interim Injunctions Get Up/trade Dress Balance of Convenience Adequacy of Damages

Case Brief

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Parties

AU Vodka Limited

Claimant

NE10 Vodka Limited

First Defendant

Leon Hogan

Second Defendant

Procedural Posture

Interim Injunction Application in Passing Off Claim / Interlocutory (application for Interim Relief)

Legal Issues

  1. 1 Whether the claimant is entitled to an interim injunction restraining the defendants from marketing and selling NE10 vodka on the basis of passing off by get-up similarity.
  2. 2 Whether there is a serious issue to be tried regarding passing off.
  3. 3 Whether damages would be an adequate remedy for either party pending trial.

Ratio Decidendi

The claimant established a serious issue to be tried on passing off, but the evidence did not support a likelihood of widespread deception or irreparable harm pending trial. Any damage to the claimant could be adequately compensated by damages and an injunction at trial. Conversely, an interim injunction would cause disproportionate harm to the defendants, who had already launched their product and built business momentum. The balance of convenience favoured refusing interim relief and proceeding to an expedited trial.

Court Disposition

Interim injunction refused; application to strike out second defendant refused; expedited trial ordered.

Orders

  • Claimant's application for interim injunction refused.
  • Defendants' application to strike out second defendant refused.