Eleanor previously wrote about the Vodkat/Vodka passing off case.
The result of an appeal in that case has just been published.
The makers of Vodkat argued that the right to prevent an imitation of a product category (such as Vodka or Champagne, as opposed to a particular brand such as “Smirnoff”) only exists for “premium” products. Its case was that Vodka is not a premium product but rather just an “alcohol delivery device”. Nice!
The Court agreed that Vodka is not a premium product, but said that didn’t matter, i.e. Vodka producers could prevent the sale of Vodkat because a punter might buy it thinking he/she was buying a “proper” Vodka.
During the case various examples were given such as whether a manufacturer of butter could prevent a margarine producer using the word “butter” in its product name. According to the Vodkat appeal the answer is “probably yes”. This interested me.
What about the product “Utterly Butterly”. It’s not butter, but is that clear to all the punters who buy it? If not then a butter manufacturer could probably attack it.
Contrast that with “I Can’t Believe it’s not Butter”. That brand name makes it clear the product isn’t butter (thus removing any risk of passing off) while still making the average punter think of butter (at least by association). Genius.
So what the Vodkat people need to do is rebrand their product as “I can’t believe its not Vodka” and then make sure its retailers don’t put it too close to “real” Vodka on its shelves.
Douglas “I can’t believe he is not a High Court Judge” Mathie.
On August 9, 2010