Whisky Galore is the title of a novel by Sir Compton Mackenzie about the shipwreck of a cargo vessel off the Hebrides in the Second World War. The ship had been carrying whisky and the story is about a battle of wits between islanders who had salvaged the freight and hidden and the authorities who were doing their best to stop them. I was reminded of that novel by the passing-off action that AU Vodka Ltd has brought against NE10 Vodka Ltd.
AU distils and distributes the vodka in the gold bottle and NE10 the vodka in the metallic blue. Both companies are incorporated in Wales and carry on business in Swansea. The action has been brought in the Intellectual Property List of the Chancery Division in London even though it could have been brought in the Business and Property Courts of Wales in Cardiff or the Intellectual Property Enterprise Court.
The first round of the proceedings was an application for an interim injunction to restrain NT10 from marketing and selling its products until judgment or further order. It was heard by Mr Justice Mellor who delivered judgment in AU Vodka Ltd v NE10 Vodka Ltd and another  EWHC 2371 (Ch) on 21 Sept 2022. The judge dismissed the application because he found that there would be a greater risk of injustice to NE10 were he to grant the order than there would be to AU in refusing it. I analysed his judgment in Passing-off: AU Vodka v NW10 Vodka in NIPC Law on 9 Oct 2022.
The next stage of the litigation will be a trial which the judge directed to take place in January, In that hearing the court will consider the substantial issues. The judge did not have to consider the merits of the case for the interim injunction application. All he had to do was decide whether AU could win. Mr Justice Mellor said at para  of his judgment that there was "a serious issue to be tried" but the case was "finely balanced."
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