So they have the same bottle shape, same label silhouette, same label lay-out same ’san serif’ font, same colour….same ‘get-up’?

Archbishop Passing Off is already robing up behind the drinks counter to enter the unholy fray with his ‘holy trinty’ of Reputation, Confusion and Damage but who will survive the refining fire of this test?

Is Sainsbury’s passing off its product as that of Diageo? Is there a trade mark infringement?

Surely, no problem with Reputation. Pimm’s has established itself globally as an iconic brand, synonymous with Wimbledon, Henley, May Balls, picnics and all that is sacred about the British Summer.

And, surely, no issue with Damage. One can almost see the out-stretched hand of the thirsty British consumer waivering and submitting momentarily to curiousity and the lower price tag of the Sainsbury’s ‘equivalent’ with huge consequential loss for Diageo.

So the legal armies must face each other on the uncertain legal battle-field of Confusion. But is there really any Confusion? The name is similar and the

Sainsbury’s product clearly echoes (deafeningly!) the Pimm’s brand ..but we are not talking puffins and penguins here. The product is pretty obviously not the original although it is clearly trading off its reputation.

It is to be hoped that the tort of passing off is sufficiently flexible to achieve the only just result.

The ‘Jif Lemon’ case historically established that an iconic ‘get-up’ will be protected in passing off. Misrepresentation can be imputed by similarity regardless of difference. The likelihood of some confusion is surely enough.

_{Chris is a partner at Silverman Sherliker  020 7749 2700  7 Bath Place, London EC2A 3DR
He can also be found on Twitter at @London_Law_Firm}

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