JUDGMENT :

Templeman L.J. - This is an appeal against an order of Lawson J. on 24th April, 1980 sitting in the queen's Bench Division whereby he granted an injunction by way of interlocutory relief in a passing off action.

Frozen foods, including vegetables packaged and prepared for cooking, have been on sale for a number of years anti from the evidence which we have received in these proceedings it appears that packages of different foods have necessarily some similar characteristics. Each package commonly consists of a sealed soft plastic container, sometimes transparent and sometimes containing a pictorial representation of the contents, and an indication of the method of cooking. The product is further identified by an appropriate name which may be a descriptive name or a fancy name, and the package is printed with the brand name of the supplier so as to distinguish his products from the brands of other suppliers. The package also contains printed information, including instructions on cooking, weight and ingredients. The consumer must first identify the product he is looking for, or be tempted by the product which catches his eye and he must then select the brand according to price and according to taste unless he takes the robust view that there is no difference between brands except the cost of advertising.

Until 1979 chipped potatoes of various brands were on the market thus packaged and prepared and they required to be cooked by the consumer by the process of immersing and frying the chips in boiling oil. In January 1979 the plaintiffs. McCain International Limited, launched on the market chipped potatoes which required to be cooked by the process of baking the chips in the oven, or by cooking them under a grill. The plaintiff of s' packages was typical; that is to say, it was a sealed soft plastic container. It was yellow and brown, a colour scheme which is not unheard of amongst suppliers of potatoes in packets. The packet bore in the top left hand corner, prominently, the plaintiffs' brand name, McCain, in a style of writing and with a star forming a dot over the "i" which is a mark of the plaintiffs and used by them to distinguish their products from the products of other suppliers.

The packet contained the word "new" and across the middle, telling the consumer what was inside there were the words "Oven Chips" Under that were the words "straight cut" which conveyed to the informed consumer that these chips were not wrinkled but straight, and the laudatory comment "deep fried taste WITHOUT deep frying", and the message that there was no oil, no mess, and no smell. There was a representation of an oven with chips being cooked in the oven. On the back of the packet there were cooking instructions for the oven method and the grill method. Throughout these instructions there were reference to "new McCain oven chips" and to "McCain oven chips", and in the bottom right-hand corner there were the name and address of the producer, McCain Foods, Scarborough, Yorkshire, England.

The package achieved its purpose of informing the consumer that the contents consisted of potato chips prepared for cooking in the oven and supplied by the plaintiffs.

The plaintiffs conducted an extensive advertising campaign in which they referred consistently and accurately to McCain oven chips, in the same way as they so referred consistently. extensively and accurately in their packaging. In my judgement the teaching of the plaintiffs' packaging and the teaching of the plaintiff's advertisements was to the effect that here was a new product called "Oven chips which were chipped potatoes prepared for cooking in the oven and to the effect that McCain were suppliers of this product. But the implication to the consumer, whether accustomed to frozen foods or not, was that what was being sold was McCain oven chips and that there was a distinction between McCain oven chips and the oven chips of any other supplier such as Sainsbury, Tesco, Country Fair, or Bi