Passing-off: A fine line between competition and protection

Passing Off occurs when a business falsely presents its products or services as those of another, leading to consumer confusion and potentially harming the original business’s reputation and market position.

In the case of Yoplait Ireland Ltd v Nutricia Ireland Ltd[1], Yoplait sought an injunction to prevent Nutricia from entering the Irish consumer market with a product that Yoplait asserted was so similar to its brand that it risked misleading consumers and damaging Yoplait's brand. The High Court agreed, and the Court of Appeal has now upheld that decision.

Background

Yoplait launched its Skyr product line in 2022 and quickly secured a leading position in the Irish market. In early 2025, Nutricia, the Irish subsidiary of Danone, introduced a new Skyr range in the UK and signalled plans to launch in Ireland. Yoplait brought a claim before the Irish High Court seeking an injunction to prevent Nutricia from introducing its product and, alleging that Nutricia’s packaging so closely resembled the packaging of its own Skyr product, that it has the potential to mislead consumers and damage Yoplait's brand.

The High Court

In considering the test for granting an interlocutory relief, as set out in Merck Sharp and Dohme[2], Barrett J considered the requisite proofs for a claim of passing off, as endorsed in Ireland in McCambridge Ltd v Joseph Brennan Bakeries[3].

Interestingly, Yoplait had not produced any evidence of actual consumer confusion. Barrett J noted that proof of intention to deceive is not required and it is sufficient that a defendant represents its product in such a way that it is reasonably foreseeable that the claimant’s business or goodwill will be damaged as a result.

Barrett J assessed the likelihood of confusion based on his own perception of the competing products similarity, commenting that “the sheer blueness” jumps out when one looks at the packaging of the competing products, and that when products are placed next to each other in a supermarket fridge, colour is the first thing people notice.

For that reason, Barrett J formed the view that the overall visual impression created by the products' similar get-up was likely to cause consumer confusion. In his view, this therefore represented one of those "rare cases" where passing-off can be established primarily through the similarity of the product's get-up.

The Court of Appeal

Ultimately, the Court of Appeal upheld the decision of Mr Justice Barret.

In giving her Judgement, Ms Justice Niamh Hyland noted that noting there "is a delicate balance to be drawn between protection and competition" and she is conscious that "Danone is being denied entry to a market that, on its case, it is fully entitled to enter. If it transpires that it is correct, competition will have been stifled."

Given the circumstances, The Court ordered that Yoplait expedite the trial of the action and to make an application to the Judge in charge of the commercial list.