Griffins, a New Zealand subsidiary of French giant Danone, has had to withdraw 10,000 buckets of baby biscuits from sale after smaller rival biscuit maker Cookie Time won a court injunction last week.
Griffins had launched a product called Holiday Wee Chocolate Chippies in red buckets featuring its Cookie Bear on the packaging. And Christchurch-based Cookie Time saw red when it discovered the product on sale – in buckets it considered to be remarkably similar to the Christmas season pails it has been selling door to door for 15 years.
Claiming the product was too close to its own, Cookie Time successfully sought an injunction in the High Court at Auckland last week preventing the Griffins product’s sale. The court also awarded costs to Cookie Time, but the amount of those costs has yet to be determined.
Cookie Time’s founding directors Guy Pope-Mayell and Michael Mayell, said afterwards they were pleased to see the law had protected their company. “When we first saw the Griffins product we couldn’t believe how closely it resembled ours.” Pope-Mayell says they were also concerned that the Griffins buckets were only 60% full and weighed 375g compared to Cookie Time’s full pails weighing 650g.
But Griffins managing director Tony Nowell says his product was never intended to be a copy of Cookie Time’s. “We only did this (product) because there was some interest from some of our retail customers.”
Just 10,000 buckets were produced, compared with Cookie Time’s production run of 165,000. There was never any intention to sell the buckets door to door and Cookie Time’s buckets are not sold in supermarkets.
Nowell says when the artwork for the product crossed his desk – and those of others in the company – they did not have a Cookie Time product on hand to compare it with. The artwork was based on Chocolate Chippie branding, a bucket and the colours of Christmas. The similarity with Cookie Time’s range was coincidental, he says.
While disappointed at the court’s decision, Nowell says he has taken consolation from the fact that the court upheld Griffins’ right to market product in commonly available packaging formats, such as a bucket, and carry key elements of its branding onto other packaging formats, such as its bear. He was also pleased the court didn’t give ownership of the traditional combination of red and green festive season colours to a single party.
He says the injunction declares that as long as Griffins doesn’t use a long list of elements together in such a way that they might cause confusion amongst consumers it can continue to produce and market its products freely.
Griffins won’t be pursuing the matter further and Nowell says he will be making an approach to Cookie Time to resolve the issue of costs. “We have absolutely no interest in prolonging this affair and letting it go on in the courts. This sort of thing doesn’t do our company or brand any good.”
By Robert Stockdill, editor of Grocer#;s Review