Allegations are not always “worth a shot”

6th October 2022

On 16th September 2022 The Honourable Mr Justice Mellor refused to grant an interim injunction against NE10 Vodka (NE10) in favour of AU Vodka Ltd (AU).

Au Vodka Ltd launched in 2015 and sell a range of vodkas in gold metallic bottles. They brought a passing off claim against NE10 Vodka shortly after it launched.

Examining the principles of the well-known American Cynamid criteria, and on a balance of convenience, Mr Justice Mellor refused to grant an injunction to restrict the sale and marketing of NE10, pending the Trial which is due to be heard at the beginning 2023.

NE10 are therefore free to trade their vodka products over Christmas and New Year, which are notoriously busy in terms of alcohol purchases and consumption.

NE10, a Welsh start-up launched on 22 August 2022, was met with a letter before action from AU’s solicitors. AU are also a Welsh originating company.

In his Judgement at the interim injunction hearing, having reviewed the letter before action, Mr Justice Mellor expressed extreme criticism of the shopping list of allegations raised in the letter, which referred to:

  • Allegations of bad faith against the Director of NE10;
  • Breach of a registered trademark;
  • Passing off of;
    • the logo design;
    • the name Au and Au 79;
    • the shape of the bottle;
    • the get up and composition;
  • An unlawful company name; and
  • Infringement of the Consumer Protection from Unfair Trading Regs.

The Judge labelled the claim before him, being a claim of passing-off of the AU product’s get-up, as “discernible” from the letter before action, although it was “buried in amongst a series of hopeless allegations” also contained in the initial letter, which were not pursued by AU.

Interestingly, the Judge believed that in the 4 months preceding the Trial, the majority of the public would not be deceived into believing that there is a connection between the Companies’ products. Mr Justice Mellor distinguished between factors which may cause confusion as to whether the products are connected and factors which may deceive consumers into purchasing the products on the basis that they are connected. Were there to be any deception amounting to passing off, the Trial injunction applied for by AU would, if granted by the Judge, have been an adequate remedy alongside an award of damages.

The outcome of the AU’s injunction application should come as a warning to all who are pursuing a claim. The statements of any case, such as a letter before action, need to be carefully drafted and be direct as to the true issues in dispute. Mr Justice Mellor did not take kindly to AU Vodka’s solicitors’ approach in their letter before action, having produced a long list of allegations many of which were not pursued and considered to be unfounded. The morale of the story: allegations are not “always worth a shot”.

Though taking an aggressive approach to written correspondence prior to and during proceedings may appeal to parties in the heat of a dispute, any claims made must have merit. Often where there is a valid claim, the facts of the case will speak for themselves and, rather than aggression, what is required is well articulated correspondence concisely delivering the facts which support the claim. Through collaboration with our clients and detailed discussions surrounding the facts of a matter, we constructively advise when certain allegations carry little weight, and instead place greater focus on the facts supporting our clients’ position.

If there are circumstances which have left you feeling aggrieved, at the fault of another party, and we can be of assistance, do not hesitate to contact a member of Kuits’ Dispute Resolution Department on 0161 832 3434.

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