Yesterday morning the IPKat posted this item on a procedural issue relating to amendment of pleadings in a passing-off action, Gama Healthcare Ltd v Pal International Ltd. The blogpost featured a couple of illustrations that were not featured in the Lawtel note from which this Kat sourced his blogpost. At the bottom of the post, the Kats explained:The ... the illustrations ... were the closest to similar packaging that this Kat could lay his paws on via a Google Image search. If anyone has more confusingly similar images, do please share them.
The Kats have since received, via an anonymous benefactor, the following illustrations. The one on shown above, right, is the packaging of the claimant, Gama; on the left is the packaging of the defendant Pal. Might you be confused into picking the package on the right, mistaking it for the package on the left if you didn't have them both in front of you? Whether you are a hospital or health authority purchasing officer, a private purchaser or a person being wet-wiped, the Kats are running a sidebar poll which will enable you to answer this question.Caveat: this poll is conducted purely for the amusement of readers of this weblog. It is not mandated by the trial judge or commissioned by either party; it is not based on any methodology and it is not intended to have any evidential value at all.
Gama v Pal: those wipes -- and a sidebar poll
Reviewed by Jeremy
on
Wednesday, July 29, 2015
Rating:
Reviewed by Jeremy
on
Wednesday, July 29, 2015
Rating:
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Posts
I am no expert, however this appears a blatant attempt to confuse the average consumer.
ReplyDeleteIs the average consumer really that bothered which brand of wet wipes they get?
ReplyDeleteAnonymous @ 10:12,
ReplyDeleteYour question, while perhaps meaningful in a realism sense, is expressly not a part of the equation.
The fact of the matter that a trademark issue is put on the table takes your question off of the table precisely because someone cares enough to make a (federal) case of it.
The fact that someone sues is hardly the point - it is not the average consumer suing. People sue for hopeless cases all the time. However the fact that the Defendants have chosen to adopt packaging plainly highly similar to the Claimant's packaging does seem germane. After all they must know the market, and they have taken the dangerous commercial decision to adopt that packaging. It seems unlikely that they took that decision lightly, and therefore one assumes that they thought the average consumer would be influenced by the packaging, i.e. does care.
ReplyDeleteThe fact that someone sues is EXACTLY the point.
ReplyDeleteThe average consumer is a legal mechanism, applied to an issue at law.
You are attempting a distinction that has no difference.
Lots of products are similiar and share the same colour but that does not lead to confusion. I can see the difference between these two as they are branded differently.
ReplyDelete