Pots of yoghurt, pots of medication: two interim decisions

Two quite unrelated High Court hearings this week reflected the current no-nonsense approach that judges in England and Wales are taking with regard to the realities of IP litigation. Both led to extempore rulings on interim issues that will shape the course, and the likely cost to the parties, of subsequent litigation. Curiously, both cases featured pots. While neither judgment is publicly available, each case has been conveniently noted by subscription service Lawtel.

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The first, Fage UK Ltd and another v Chobani UK Ltd, is the second time in five weeks that these parties have faced one another in court.  Last month Mr Justice Briggs heard Greek yoghurt-maker Fage's application for interim injunctive relief against the sale of Chobani's American-Greek yoghurt (noted by the IPKat here).  This time round, before Mr Justice Hildyard, Chobani applied to adduce survey evidence on consumer attitudes towards the attributes of Greek yoghurt was granted where the evidence would go to the heart of Fage's passing off claim.

Greek yoghurt -- or is it?

In short, Fage claimed that only yoghurt made in Greece with Greek milk could be labelled Greek yoghurt, while Chobani maintained that its product could properly be characterised as Greek since it had a particular taste and consistency. After Chobani commissioned a pilot survey, for the very modest cost of £1,800, in order to assess consumer attitudes, Fage's expert witness stated that the survey would serve no useful purpose since the questions were too vague and there was no provision for consistency with regard to how respondents to the survey would inspect the product. Chobani subsequently clarified elements of the survey. The estimated cost for a full survey was £10,000 and the court had to decide whether that full survey would be valuable in the main hearing and whether the cost of allowing it was justified.

Said the judge yesterday, even if the survey evidence was technically admissible, he should not admit it unless it was both valuable per se and generated evidence of sufficient utility to justify the costs involved. While few surveys survive sustained methodological criticism, Chobani's satisfied these criteria: it went to the heart of the action and should be allowed.  However, given the likely consequential costs of the survey, the cost estimate  of £10,000 was likely to be exceeded; additionally the court still had some reservations about it. Accordingly, Chobani would be allowed to conduct the survey at its own risk with regards to costs and if, following consideration of the criticisms of the survey, Chobani wished to modify it, it had liberty to apply for approval of those changes.  The court had ready its own amended version of the survey and, subject to any objections that Fage might have had, it was open to Chobani to adopt any of those amendments without having to seek permission first.

This Kat notes that the court was guided in its approach to the admissibility and utility of surveys by the lengthy and well-nigh exhaustive analysis of the subject by the Court of Appeal some three weeks ago in Interflora Inc v Marks & Spencer Plc [2012] EWCA Civ 1501 (noted by the IPKat here).  He likes the interactive approach taken by the judge, in concert with the parties, to achieve a result that was relevant, cost-sensitive and practical.

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The second case is Protomed Ltd v Medication Systems Ltd, a Patents Court decision of Mr Justice Mann this Monday. As IP disputes go, it was a bit of a hybrid, Protomed having instituted passing off and United Kingdom trade mark infringement proceedings against Medication Systems in relation to two patents [that's what the Lawtel note says: the Kat thinks the claim was for patent infringement too, as the judge's ruling indicates] concerning the safe, accurate and convenient packing of individual dosages of medication in pots, which sat in deep individualised recesses in a tray. It seems that Protomed's tray was covered in a non-permeable heat-sealed plastic sheet, perforated to allow the easy removal of the individual pots, the contents of which were protected by another plastic sheet which was peeled back before consumption. Computer-generated details of the drug contained in each pot were included on each pot, and each tray had the name and a photograph of the relevant patient. As luck would have it, Medication Systems was selling similar trays, though its individualised doses were not in separate recesses in the tray, being integrally part of the tray with a perforated non-permeable sheet over the top of the individualised doses. When doses were removed from the tray, a hole was left in the tray. Additionally, Medication System's tray was sealed with adhesive, rather than heat-sealed.

Mann J, granting permission to appeal, dismissed Protomed's application for interim injunctive relief.

So far as patent infringement was concerned, the patent was not complicated, and the exercise of construing it was a sufficiently straightforward one. Even a prima facie case of infringement could not be made out without departing from the clear meaning of the words of Protomed's claims: there was therefore no basis upon which even interim relief could be granted.

As to passing off and trade mark infringement, Mann J was left with the clear impression that there was little scope for confusion. Not only that, but Protomed's argument that its business would collapse unless Medication Systems were restrained was not compelling; what's more, it appeared that both parties had sufficient funds to enable them to survive this litigation, whatever its outcome.

Again, this decision seems sensible.  Refusal of interim injunctive relief for patent infringement on the ground that not even prima facie infringement has been established may deter a claimant with a weak case from pushing it through the expense of a full trial; the notion of there being "little scope for confusion" may have the same effect with regard to the passing off and trade mark infringement claims, additionally suggesting to the defendant that it may be prudent to take such steps as are available for diminishing even that little degree of scope for confusion which Mann J identified.

Hotpot here
Stockpot here
Fusspot here
Pot calling the kettle black here