In a judgment delivered by Mr Justice Barrett on 2 May 2025, the High Court granted an interlocutory injunction restraining Danone from launching a Skyr yoghurt product in Ireland until the outcome of the full trial of the case. He found that Yoplait had established, at the interlocutory stage, the three traditional limbs of passing off:
- the existence of goodwill;
- misrepresentation likely to cause confusion; and
- resulting damage to goodwill.
Danone appealed the decision. On 1 August 2025, Ms Justice Hyland delivered judgment on behalf of the Court of Appeal.
The appeal challenged both the High Court’s findings and its discretionary decision to grant an injunction. However, the Court of Appeal ultimately upheld the injunction, while refining the terms in which it had been granted.
Standard of Review on Appeal
The Court of Appeal began by addressing the applicable standard of review for interlocutory injunctions. As injunctive relief is a discretionary remedy, the Court will only interfere with a decision where the trial judge has erred in a material way or if the injunction results in injustice to the appellant. Citing Lawless v Aer Lingus [2016] IECA 235 and Betty Martin Financial Services Ltd v EBS DAC [2019] IECA 327, the Court reaffirmed that deference must be shown to the trial judge’s evaluation of the evidence, particularly where subjective impressions (such as visual similarity) are involved.
Goodwill and Reputation
The Court had little difficulty in accepting that Yoplait had established goodwill in its Skyr product. Drawing on Mitchelstown Co-Operative v Golden Vale Products Ltd, it reiterated that goodwill may be proven by demonstrating a sustained market presence. As the market leader in Skyr yoghurts in Ireland since 2022, Yoplait clearly met this threshold. Danone did not contest this point on appeal.
Similarity and Misrepresentation
The more contentious issue was whether Danone’s product created a likelihood of confusion. At first instance, the High Court had relied on both a customer survey and its own assessment of the packaging. Danone argued that the survey methodology was flawed and inadmissible at the interlocutory stage. It also criticised the trial judge’s reasoning as being unclear and contradictory.
On appeal, Ms Justice Hyland acknowledged that the High Court’s treatment of the survey evidence lacked clarity. However, following the principles in SmithKline Beecham plc v Antigen Pharmaceuticals Ltd [1999] 2 ILRM 190 and Griggs Group Ltd v Dunnes Stores (Unreported High Court, 4 October 1996), the Court of Appeal held that even if the survey was not determinative, the trial judge was entitled to rely on his own visual impression of the packaging. Given the low threshold required for Yoplait to establish that there is a “fair issue to be tried”, the Court’s impression was sufficient. The use of subjective visual comparisons at the interlocutory stage, particularly in fast moving consumer goods markets, is well established in Irish and English case law, including Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504.
Danone’s argument that the blue and white colour scheme was generic to yoghurt products was rejected. The Court accepted the trial judge’s finding that the relevant consumer was one purchasing Skyr yoghurt in particular, not simply strained yoghurt more generally. Given this, it was not unreasonable to conclude that there was a fair issue as to whether the similarity of the packaging could mislead consumers.
Adequacy of Damages and Balance of Convenience
Applying the modern, flexible approach set out by O’Donnell J in Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65, the Court of Appeal affirmed that the adequacy of damages favoured Yoplait. It cited with approval Clarke J’s remarks in Jacob Fruitfield v United Biscuits that goodwill is a form of property which should not be lightly risked, and that reputational damage is often difficult to quantify. While Danone’s losses from a delayed market entry could be calculated, the harm to Yoplait’s brand value would be far harder to assess or compensate adequately.
Danone had also argued that Yoplait’s delay in issuing proceedings undermined its claim to urgent equitable relief. The Court rejected this, agreeing with the High Court that the short interval between Yoplait becoming aware of the Danone packaging and issuing proceedings did not constitute undue delay.
Terms of the Injunction
Where the Court of Appeal did find merit in Danone’s argument was in the form of the injunction. The High Court Order restrained Danone from placing on the market any Skyr product “confusingly similar” to Yoplait’s. The Court described this wording vague and potentially overbroad. In line with the decision in Coflexip SA v Stolt Offshore MS Ltd [2001] 1 All ER 952, the Court substituted more precise language. The revised order made by the Court of Appeal prohibited Danone from marketing Skyr products using packaging similar to the specific get-up of Yoplait’s Skyr products, narrowing the scope of the restriction while preserving its protective effect.
Conclusion
The Court of Appeal dismissed Danone’s appeal, affirming the High Court’s conclusion that the case raised a fair question to be tried and that the balance of convenience favoured Yoplait. However, the Court modified the form of the injunction to ensure clarity and proportionality.
This decision reaffirms the robust protection courts are willing to afford to brand goodwill and product get-up at the interlocutory stage, pending the full hearing of the case at trial. It also illustrates the high bar for overturning discretionary relief on appeal.
If you would like further information on any of the issues raised in this article, please contact Partner, Jeremy Erwin jerwin@hayes-solicitors.ie or Associate, Ross Magee rmagee@hayes-solicitors.ie.
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