AU VODKA LIMITED v NE10 VODKA LIMITED & Anor

AU VODKA LIMITED v NE10 VODKA LIMITED & Anor

The claimant established a serious issue to be tried on passing off, but failed to show that damages would not be an adequate remedy pending trial. The evidence of actual deception was weak and largely amounted to consumers wondering about a connection rather than being deceived. The balance of convenience and risk of injustice favoured refusing the interim injunction, as granting it would disproportionately harm the defendants' business. Allegations against the second defendant for personal liability were unsustainable except as to joint and several liability, which survived for trial. The case was ordered to be expedited to trial.

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
Civil Intellectual Property (passing Off) / Interim Injunction Application; Ruling on Strike Out and Directions for Expedited Trial
Outcome
Interim injunction refused; strike out of certain allegations against second defendant granted in part; expedited trial ordered.
Legal Topics
Passing Off, Interim Injunctions, Get Up/trade Dress, Joint and Several Liability, Adequacy of Damages, Balance of Convenience
Intellectual Property Civil Procedure Passing Off Interim Injunctions Get Up/trade Dress Joint and Several Liability Adequacy of Damages Balance of Convenience

Case Brief

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Parties

AU VODKA LIMITED

Claimant

NE10 VODKA LIMITED

First Defendant

LEON HOGAN

Second Defendant

Procedural Posture

Civil Intellectual Property (passing Off) / Interim Injunction Application; Ruling on Strike Out and Directions for Expedited Trial

Legal Issues

  1. 1 Whether the claimant is entitled to an interim injunction restraining the defendants from marketing and selling NE10 vodka on grounds of passing off based on get-up similarity
  2. 2 Whether allegations against the second defendant (Mr Hogan) should be struck out
  3. 3 Whether the case should be expedited to trial

Ratio Decidendi

The claimant established a serious issue to be tried on passing off, but failed to show that damages would not be an adequate remedy pending trial. The evidence of actual deception was weak and largely amounted to consumers wondering about a connection rather than being deceived. The balance of convenience and risk of injustice favoured refusing the interim injunction, as granting it would disproportionately harm the defendants' business. Allegations against the second defendant for personal liability were unsustainable except as to joint and several liability, which survived for trial. The case was ordered to be expedited to trial.

Court Disposition

Interim injunction refused; strike out of certain allegations against second defendant granted in part; expedited trial ordered.

Orders

  • Interim injunction application by claimant refused
  • Strike out of allegations against second defendant (Mr Hogan) granted in part: personal liability allegations struck out, joint and several liability allegation remains