Boehringer Ingelheim Ltd & Others v Vetplus Ltd (ChD)
Reference:  EWHC 972 (Ch);  FSR 28; (2007) 30(6) IPD 30043
Court: Chancery Division
Judge: Pumfrey J
Date of judgment: 26 Apr 2007
Prior restraint – Interim Injunctions – Human Rights Act section 12(3) – European Convention on Human Rights Article 10 – Comparative Advertising – Libel – Malicious Falsehood – Trade Marks
Jonathan Barnes (Defendant)
Instructing Solicitors: Clarkslegal for the Claimants; DWF for the Defendant
The Claimants and Defendant compete in the market for nutritional supplements for animals. The Defendant intended to make certain public statements, including adverts in the veterinary press, to the effect that one of the Claimants’ products contained significantly less of its principal active ingredient than claimed on its label. In making such claims the Defendant intended to use the Claimants’ trading name, and that of their product, both of which are registered UK and EC trade marks. The Claimants sought an interim injunction to restrain the Defendant’s publications, on the basis that they would amount to malicious falsehood and constitute an infringing use of the Claimants’ trade marks. The Defendant resisted on the ground that it based what it said on the truth of the results of scientific tests and was therefore protected against an interim injunction by the rule against prior restraint of Bonnard v Perryman.
The appropriate threshold test for the grant of an injunction and whether an injunction should be granted.
On the material before the court the “sting” or “take home message” of the proposed advertisement, that the product in question failed to meet its label claim, was capable of being justified. Therefore, the rule in Bonnard v Perryman applied and an injunction was refused. Further, if this was the wrong approach, the Claimants had not established with particular reference to their claim for trade mark infringement, s.12(3) Human Rights Act 1998 and Cream Holdings v Banerjee that they were “more likely than not” to succeed at trial, so the application would have failed on this basis too.
This represents an application of the rule in Bonnard v Perryman to a claim which, although brought in relation to trade marks amongst other things, the court recognised as being of the essence of libel or malicious falsehood. The court stated in terms that the reputational damage feared by the Claimants would not be exacerbated by the use of the trade marks in question. Accordingly, since what was being sought to be protected were the Claimants’ reputations but no more, the court refused to intervene where the Defendant had available an apparent defence of justification.