I caught this story on the BBC website this morning about the ongoing battle between Camden Town Brewery and Redwell Brewery over the use of the the term ‘Hells’ to describe a lager. CTB issued High Court papers claiming Norwich-based Redwell Brewery was trying to “pass off” its beer as Camden’s. Redwell says not so and that “hells” is a German term for a light lager in common use. Erm, not really. I think Redwell are trying to stretch a point though. Their claim that ‘hells’ is a common term used to describe a German beer style is not strictly true : ‘Helles’ and ‘Hell’ are, ‘Hells’ is not. Nit picking you might argue, but it is a potentially big nit as far as branding goes.
Now, there are a couple of small Swiss brewers who use ‘Hells’ as a part of their beer name that Redwell could try and use to argue that the term should be regarded as generic, in the same way ‘Hell and Helles’ are. Indeed they will no doubt try and argue that the average beer drinking member of the public would see no real difference in Hell, Hells, Helles when attached to a beer name. I’ll be honest, I thought that, like the other two terms, it was just a style descriptor; and I like to think I’m reasonably knowledgeable about beer.
CTB have also applied for a Trademark for the term ‘hells’ in respect of beer. https://www.tmdn.org/tmview/get-detail?st13=EM500000012464699 and https://www.tmdn.org/tmview/get-detail?st13=GB500000003069583
There is a lot going one here. Clearly if Redwell called their beer Hell or Helles, there is not an issue and no case. It is quite frankly what they should do instead of pissing about with a court case they probably can’t afford. They want to play the downtrodden bullied company by the bigger badder CTB. Grow up, get over yourselves, stop being dicks, and get back to making good – often great – beers. However, on the other side CTB’s argument that the public would somehow think Redwell’s ‘Hells’ was their own is just plain bollocks, and I will bet money they can not find a convincing witness to claim this is the case in court. So, they need to stop being dicks too.
This really shouldn’t be going to court. BUT, if it does, I hope CTB has more in its claim that just passing off, otherwise Redwell have a chance. Here’s why.
So let’s look at it from a purely legal perspective. CTB are going for a ‘passing off’ claim. This is a common law tort, not a statutory cause of action, with a the underlying principle that “A man is not to sell his own goods under the pretense that they are the goods of another man”.
To win CTB will need to establish 3 things:
1. Goodwill in relation to its goods or services.
2. A misrepresentation by Redwell to the public (whether or not intentional) leading or likely to lead the public to believe that the goods or services offered by him are the goods or services of the claimant.
3. Damage to the claimant (e.g. financial loss or damage to goodwill), as a result of the Redwell’s misrepresentation that the source of Redwell’s goods or services is the same as the source of those offered by the CTB.
The classic description of goodwill in relation to passing off is: “the benefit and advantage of the good name, reputation, and connection of a business. It is the attractive force which brings in custom” In other words, it is what keeps the consumer coming back.
CTB have been making Hells since 2010 and it is their leading brand. There is clearly goodwill in the product.
There must be a misrepresentation as to the origin (source) of the goods.
Common misrepresentations include:
• a defendant falsely representing that his goods are the goods of the claimant.
• a defendant falsely representing that his product or business is connected with the claimant
Such misrepresentations may take the form of an express statement by the defendant, or may be implied from the use by the defendant of the same or similar distinguishing marks in respect of his goods or services as are used by the claimant. It is irrelevant whether or not the defendant intended to pass his goods or services off as those of another, or whether he acted maliciously, negligently or fraudulently if the effect is that there is a misrepresentation to the public.
The second part of this element is therefore that the misrepresentation must confuses, deceives or is likely to confuse or deceive the public .
The claimant must prove on the balance of probabilities that a proportion of the public would be confused or deceived as a result of the defendant’s misrepresentation.
So here CTB will claim that the mere use of the word ‘Hells’ is enough to prove misrepresentation. Whereas Redwell will say where’s your proof anyone was confused or deceived into thinking our Hells has any connection with yours.
Passing off will only be actionable where a claimant can show that the misrepresentation creates a real and tangible risk of damage to its identifiable goodwill – either financial loss or damage to goodwill. Where a defendant falsely represents his goods as those of the claimant, the damage is usually in the form of a diversion of sales away from the claimant to the defendant.
So, can CTB show that they’re losing sales to Redwell through people’s confusion over their respective ‘Hell’s lagers?
I should point out here that proof of damage is not essential in every case to enable the claimant to establish the action. It depends on the circumstances. And, one of the interesting things about passing off cases is that they are very much decided on a case by case basis, and turns on the individual case facts.
To win in a passing off case CTB will need to present good evidence to establish each of the three elements and convince the court that Redwell has behaved in a way calculated to deceive a proportion of the public. Redwell will argue the term ‘hells’ is not distinctive and that it has not used it to pass off any goods for those of the CTB, nor is there any likelihood of appreciable damage.
As I said at the start, I think both sides should stop being dicks. Redwell should be the bigger party and just change their name to Helles or Hell. It should do this because it is the right thing to do for its company. I can well understand how doing so might stick in the throat, especially since I have just argued that from a legal perspective they have a decent chance of winning on the passing off claim – all the burden of prove is, after all, on CTB. But, really, is it worth it? I’d prefer Redwell to spend their money on making great beer, rather than in an ultimately pointless spat over lager.