GFS Flex Ltd v Brymec Ltd

17 July 2020

Martin Howe QC appeared for the defendant, Brymec Ltd, in resisting an application for an interim injunction for alleged passing off by get up of goods, specifically the use of yellow coloured clips on fittings for stainless steel gas pipes.

The claimant had been the sole UK supplier of corrugated stainless steel tubing (CSST) products to gas installers which incorporated a yellow plastic clip around the fittings. Yellow is the standard colour used for gas pipes. In February 2020, the defendant launched its own branded range of CSST products with a similar yellow plastic clip. The claimant produced witness statements from some of its trade customers that on seeing the defendant’s products advertised, they had taken them to be the claimant’s products being resold under the defendant’s own label.

Nugee J applied American Cyanamid principles. He noted from the judgment of Arnold LJ in Glaxo Wellcome v Sandoz [link to case note on that case] that it is possible for a case of passing off to succeed based on get up alone, but such cases are rare; and it needs to be established not only that the relevant public recognise the shape or colour of the claimant’s product, but also that they are moved to buy by source. The defendant’s arguments that this had not been established in the present case were cogent, but the claimant’s case satisfied the ‘serious case to be tried’ threshold.

He considered the evidence of irreparable damage to the claimant if an injunction were not granted, irreparable damage to the defendant if one were granted, and the balance of convenience. The defendant offered an undertaking to put wording on its goods and on its website stating that its goods have no connection with the claimant. Having regard to the undertaking offered, the balance of uncompensatable disadvantage came firmly down against the grant of an interim injunction.

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