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Passing off and trade mark infringement in kulfi ice cream dispute

In a dispute between manufacturers and retailers of kulfi ice cream, the High Court has upheld the claimant’s allegations of trade mark infringement and passing off.

Tubzee Limited, which had traded since 2000, owned several trade marks including a UK trade mark with a stylised “K” (including an elongated dropped tail) and a Community mark featuring two traditional India matka pots pouring a white liquid over ice cubes. Safron Food Limited originally traded under a get-up that had little in common with Tubzee’s packaging. However, following a re-design in 2006, Safron’s ice cream was sold under a design that included a “K” with a dropped tail and two circular pots pouring a white liquid (the key features).

The High Court rejected Safron’s claims that they had failed to appreciate the similarities between the appearances of the respective ice creams.

The court found that there was a likelihood of confusion between the parties’ products under section 10(2) of the Trade Marks Act 1994.
 
In relation to passing off, the court held that Tubzee had goodwill in its product’s get-up; that Safron’s use of the key features in its get-up amounted to misrepresentation; and that Tubzee had suffered some damage as a result of Safron’s actions. Despite the earlier resignation of two of Safron’s directors, the court found that they were de jure or quasi directors.
 
As a result, they were found to have procured Safron to commit tortous acts and were held personally liable for passing off and trade mark infringement.

“Practical Law” 10.10.08