As Clear as Cristal

The recent IPEC (the IP division of the High Court) decision of Roederer v J Garcia serves as a reminder to copycat manufacturers (and their commercial customers) of the dangers of brand parody. The case involved the famous Champagne brand Cristal, which objected to J Garcia’s use of CRISTALINO based on their CRISTAL brand. ASDA and Morrisons supermarkets featured as co-defendants, but settled prior to the judgment. Cristal claimed (and succeeded in showing) a likelihood of confusion and damage to its reputation in the form of detriment to distinctive character (‘blurring’) and repute, unfair advantage (free-riding) and tarnishment of its luxury brand image – CRISTALINO selling for £5 versus £175 for Cristal’s cheapest drop. The decision provides a useful reminder of the different tests when claiming damage to reputation via showing a change in consumer behaviour: for ‘blurring’ this is from the perspective of Cristal’s customers, and that they would buy less of its product, not that they would buy CRISTALINO instead; conversely, for free-riding the viewpoint is that of CRISTALINO’s consumers and whether they would buy the product because of its association with CRISTAL. An encouraging element of the case for brand owners was the judge’s willingness to look beyond the relatively small annual sales figures and market share when assessing Cristal’s reputation, instead focusing on its heritage, total sales over 66 years and its association with wealth and success. Social media posts spoofing the CRISTAL lifestyle with CRISTALINO was also noted when considering free-riding and tarnishment, bringing the consumer assessment very much into the 21st Century. Whilst this is a welcomed decision for brands looking to prevent benchmarking, it is worth highlighting that when looking to establish damage to a brand, owners of heritage and prestige brands who have carefully controlled the supply of their product are far more likely to succeed (see also the Betty Boop case) than those retailing more mass market produce (see the Morrocanoil case).

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