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Pitcher’s, Pimm’s – Match Point?

pitchers-pimms-1Well?  What is one to think?

“Pitcher’s, Pimms, Passing Off…” –  sounds like a hopscotch chant!

Sainsbury’s takes on major supplier Diageo with what might be considered to be a knock-off copy of its iconic Pimms’ brand and at the height of the thirsty Britsh summer. 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 trinity’ of Reputation, Confusion and Damage but who will survive the refining fire of this test?

Is Sainsbury’s passing off its Pitcher’s 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 (see Twitter #VTPP) 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

Same difference?

Same difference?

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.

So what do you think?

Pitcher’s or Pimm’s …Who will take Match Point?

10 Comments

  1. It’s all sour grapes !!

    We’ve seen this all before – remember when Virgin Cola knocked off the Coke can design….great way for the infringer to get PR coverage and some shelf space…but just wait until Diageo start leaning on the retailers to take the knock off from the shelves or risk losing suppliers of premium brands …. dirty world out there…but full marks for trying

    JTRS

    http://www.silvermansherlikerblog.com/pitchers-pimms-passing-off-getup

  2. Imitation is the greatest form of flattery!

    Pimm’s should take the view that they are going to get a lot of free associated advertising and product awareness from this.

    Also once people have tried Pichers (let’s assume because the price point is attractive) I have no doubt a good many will try the ‘real stuff’ i.e. Pimm’s once their finances allow it to see if it any different. At that point if Pimm’s has a superior product they will retain new business that it cost them nothing to get.

  3. Robz says:

    Sainsbury’s have form! Remember their launch of Classic Cola in the mid-90s? They used a clever team of naming experts to develop a name just close enough to compete with Coca-Cola…. next thing they knew, Coke was harumphing futilely, while Classic was was being launched on a wave of free publicity!

  4. Robz….many thanks. Yes, I am married to one of the team that named the Classic Cola so I have to declare an interest! However, I think that the Classic Cola get-up was significantly modified. They lost the “dynamic red swirl” or changed it, I think. You are dead right about the free publicity and I am sure the legal fees are factored into the NPD budget.

    http://www.silvermansherlikerblog.com/pitchers-pimms-passing-off-getup

    Apparently, Asda has been doing a Pimms’ equivalent for years.

    Sliced cucumber in a good glass of gin works as well :)

  5. As a mere consumer (non lawyer) I would think that Pitchers was offering itself up as a lower priced Pimms equivalent, and would be inclined to give it a try. Sale lost to Pimms.
    Is one of the three considerations sufficient for there to be a case, or are all three necessary, or is it a 2-1 issue?

  6. Elizabeth

    Very many thanks for your comments. I tend to agree that many will be tempted to give it a try (myself included)with damage to Diageo. Of course, there is nothing wrong with Sainsbury’s offering a competing product….but did you buy it because you thought it looked like Pimm’s? All 3 elements need to be present to be passing off.

  7. Chris says:

    Just watched a Pimms advert on the TV, could have sworn it was the Avengers!!!!

    Suggest Pimms just chill out.

  8. Adam Bass says:

    What about the recent case won by L’oreal against Bellure. Does that mean that the holy trinity to prove passing off is no longer required?

  9. Chris Sherliker says:

    Thanks Adam.

    Well, the answer to your question must be ‘yes’…In
    L’Oreal v Bellure

    the ECJ has clearly extended the protection that owners of global brands with distinctive ‘get-up’ can claim against look-a-like impostors, although the reasoning of the Court has perplexed many.

    But the case applies to trade mark owners. As far as passing off is concerned there still needs to be a misrepresentation causing confusion.

    I think that many more brands will file EU Applications that include not just the WORD MARK but also the design and get-up of the packaging in order to try and bring themselves within the broader ambit of the L’Oreal v Bellure principles.

  10. Fascinating article. L’Oreal v Bellure principles look very important for any brand owner or wannabe.
    Having discovered Pitchers at a local Sainsbury’s today, with no stock of Pimm’s, are there funnier games going on?
    And should I have bought it?

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