Interim injunction refused on the merits and claim partially struck out

Au Vodka Ltd v (1) NE10 Vodka Limited (2) Leon Hogan [2022] EWHC 2371 (Ch)

On 16 September 2022, Mr Justice Mellor refused to grant Au Vodka ("Au") an interim injunction against NE10 Vodka ("NE10") and Leon Hogan, one of NE10's directors. Instead, the Court struck out part of Au’s claim insofar as it related to Mr Hogan and ordered an expedited trial.

Au is a vodka brand that sells a range of vodkas in gold metallic bottles. In the space of 4 years, it has grown to a business worth £100mn and received a range of celebrity endorsements. On 22 August 2022, NE10 launched its own range of vodka in bottles that are metallic, but in grey, blue, or pink. In response, Au issued proceedings against NE10 for passing off and sought an interim injunction to restrain NE10's marketing and sales of its vodka products. NE10 cross-applied for an expedited trial in lieu of an injunction and to strike out Au’s claim against Mr Hogan.

What is unusual about Au's claim is that it is a "pure" get-up case and relies on goodwill that Au says it has generated in the design features of its vodka bottles (shape, colour, etc) rather than its Au logo or trade mark. 

In dismissing Au's application for an interim injunction, Mr Justice Mellor held that:

- whilst the usual American Cyanamid principles applied, weighing the merits of the case is unavoidable where the underlying cause of action is passing off, because the likelihood of deception is intrinsically linked to the risk of irreparable harm to a claimant’s goodwill.
- the relevant date for assessing the adequacy of damage for a defendant wrongly injuncted was the date from which such an injunction would run. This might not be the same date as that for assessing the status quo, depending on the facts of the case.
- Au would suffer irreparable harm if it was later successful at trial. However, it was unlikely NE10 could be fully compensated if it was wrongly injuncted.
- there was no liability for mere preparatory acts, nor was there any tort of copying.

Thus the injunction was refused and parts of Au’s claim against Mr Hogan were struck out. An expedited trial will now be listed for early 2023.

Andrew Lomas appeared for NE10 and Mr Hogan, instructed by Locke Lord LLP. You can read the full judgment here.