Martin Howe QC, instructed by Kuit Steinart Levy LLP, appeared for the Claimant.
This passing off action concerned the get-up of clinical wet wipes used in the healthcare industry. Gama alleged that the get-up adopted by Pal for its own 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 Gama.
Amanda Michaels, sitting as a Deputy Enterprise Judge, found for Pal on the basis that there was not goodwill in the get-up of Gama’s wipes, absent the prominent trade name “Clinell”, by the relevant date.
Miss Michaels went on to find that the average consumer was most likely to be a hospital procurement department, whilst repeat orders might be placed by an infection control clinician or another member of the hospital staff with responsibility for maintaining stock levels either centrally or on a ward. Pal had, when designing their packaging, specifically intended to reference Gama’s packaging and products, but this fell short of an intention to deceive or pass off. Miss Michaels 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 were Pal’s products instruments of deception.