In a judgment delivered on 2 May 2025, Mr Justice Barrett granted an interlocutory injunction in favour of Yoplait Ireland Limited restraining Nutricia Ireland Limited, an Irish subsidiary of Danone, from launching certain Skyr yoghurt products in Ireland.

Background

Skyr is a traditional Icelandic diary product, which differs from traditional yoghurts in the way it is made and the ingredients used. The Plaintiff alleged that the Defendant’s products bore a get-up that was confusingly similar to its own established range of Skyr products.

Yoplait, a well known yoghurt manufacturer, began selling its Skyr yoghurt products in Ireland in September 2022. These products, recognisable by their distinctive blue and white packaging with mountain imagery, have since become the best selling Skyr yoghurt products in the Irish market. Danone, another major player in the diary sector, through Nutricia, intended to launch Skyr products in Ireland using packaging that Yoplait claimed was visually and thematically similar to its own. Yoplait alleged this was a deliberate attempt to benefit from the goodwill it had established in the Irish market.

The proceedings were initiated by Yoplait on 10 April 2025, shortly before Danone’s planned product launch on 4 May 2025. The Plaintiff sought interlocutory relief restraining the Defendant from marketing its products with the disputed get-up, arguing that this amounted to passing off.

Passing Off

Passing off is a common law tort that protects parties against unfair competition. To succeed in a claim for passing off a Plaintiff must satisfy three cumulative elements, as approved by the Supreme Court in McCambridge Ltd v Joseph Brennan Bakeries [2013] 1 I.L.R.M. 369,:

• the existence of goodwill or reputation in the relevant product or brand;
• a misrepresentation by the Defendant leading or likely to lead to consumer confusion; and
• resultant damage to the Plaintiff’s goodwill.

In addressing the first limb of the test, the Court was satisfied that Yoplait had established significant goodwill in its Skyr products. This conclusion was supported by expert marketing evidence submitted by both parties, particularly expert evidence that acknowledged Yoplait’s substantial marketing investments and resulting consumer recognition.

Turning to the second limb concerning misrepresentation and confusion, the Court accepted the principle that intention to deceive is not a requisite element, citing An Post v Irish Permanent plc [1995] 1 I.R. 140. What matters is the likelihood of consumer confusion. The Court evaluated the overall impression created by the respective product packaging and found the similarities in colour, imagery, and layout between the Yoplait and Danone containers to be striking. Both products featured blue as the dominant colour, white secondary tones, and imagery resembling mountains (or in Danone’s case, allegedly an iceberg), all contributing to a strong visual resemblance. Photographic evidence of supermarket shelves and a consumer survey commissioned by Yoplait further influenced the Court’s view. The survey of 702 consumers commissioned by Yoplait, challenged by Danone for its timing and methodology, indicated a high degree of perceived similarity between the Yoplait and Danone products. Significantly, regular consumers of yoghurt brands identified the Yoplait and Danone pairing as the most similar among compared products.

Traditionally, Plaintiffs in passing off cases have relied heavily on customer surveys, market research, or actual consumer complaints to prove likely confusion. In this case, the Court granted interlocutory relief despite Danone’s criticism of Yoplait’s limited survey evidence and the absence of examples of confusion. Notably, the judge assessed the likelihood of confusion based on his own perception of the competing products’ similarity, emphasising the overall visual impression and typical consumer behaviour in a fast paced retail setting.

While Danone argued that its brand name was clearly visible on its packaging and should have served as a distinguishing factor, the Court was not persuaded that this alone dispelled the likelihood of confusion. Citing McCambridge and Jacob Fruitfield Ltd v United Biscuits UK Ltd [2007] IEHC 368, the Court reaffirmed that the presence of a brand name may not suffice to differentiate products where the overall get-up is similar enough to mislead consumers operating purchasing environment where many decisions are made in mere seconds.

The final limb of the test, damage to goodwill, was also found to be satisfied. The Court accepted that confusion among consumers could lead to a diversion of sales from Yoplait to Danone and that such a loss of custom represented appropriation of goodwill. The difficulty in quantifying such harm supported the Plaintiff’s case for interlocutory relief.

Interlocutory Injunction

In granting the injunction, the Court applied the test for interlocutory relief set out in Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65, where the Supreme Court summarised the appropriate steps. First, the Court confirmed that if Yoplait succeeded at trial, a permanent injunction might be granted. Second, it found that there was a fair question to be tried, with a high likelihood the case would proceed to full hearing. Third, the Court assessed the balance of convenience and determined that it favoured maintaining the status quo.

One of the central factors was the inadequacy of damages as a remedy for Yoplait, particularly given the intangible nature of goodwill and the practical difficulties of measuring reputational harm. The Court also considered and dismissed Danone’s arguments that redesigning its packaging would entail disproportionate commercial costs, including the need to align packaging across UK and Irish markets. The Court held that such costs were calculable and did not outweigh the Plaintiff’s right to protect its property interest in goodwill.

Conclusion

The immediate consequence of the judgment is that Danone is restrained from launching the impugned Skyr products in Ireland using the contested get-up. This effectively preserves Yoplait’s competitive position in the Irish market, pending a full trial. Courts are prevented from making findings of fact at an interlocutory stage and Mr Justice Barrett stressed that his conclusions should not be seen as a determination of the substantive issues in the proceedings. More broadly, the case underscores the Courts’ readiness to protect brand goodwill and the visual distinctiveness of consumer products, even where brand names are present, but the overall packaging creates a risk of confusion.

Ultimately, the decision reinforces the importance of distinct branding and packaging in competitive markets and demonstrates the potency of interlocutory injunctions as a tool to prevent market entry based on allegedly unfair commercial practices.

If you would like further information on any of the issues raised in this article, please contact Laura Fannin lfannin@hayes-solicitors.ie or Ross Magee rmagee@hayes-solicitors.ie.