Unilever Plc v Griffin & Anor

Where an interim injunction would affect freedom of expression, Human Rights Act 1998, section 12(3) ordinarily requires a claimant to show that it is probably likely to succeed at trial. A lower threshold may suffice where a short-lived injunction is needed to preserve the position while the application is properly considered. The court must also assess the balance of the risk of injustice. Copyright infringement and passing off may satisfy the threshold where the claimant has a strong case and the defendant’s use risks suggesting endorsement or sponsorship. A political purpose does not necessarily prevent copyright or passing-off relief, although it may create substantial difficulties for a trade mark claim requiring use in the course of trade and in relation to goods or services.

Unilever sought a seven-day interim injunction in intended proceedings against the first defendant, representing the British National Party, and the second defendant, its webmaster. A preview of a proposed election broadcast posted on the BNP website prominently displayed the Marmite jar and slogan imagery. A similar mocked-up image had also been sent to Sky. The defendants removed the online clip but gave no undertakings and did not appear at the hearing.

Unilever relied on registered trade mark infringement, copyright infringement and passing off. The central issues were whether the claims met the threshold imposed by section 12(3) of the Human Rights Act 1998, and where the balance of the risk of injustice lay.

1. Interim relief affecting expression. Section 12(3) of the Human Rights Act 1998 was engaged. The ordinary threshold, identified in Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253, was that the claimant was probably going to succeed at trial. A lower degree of likelihood could suffice for a short-lived injunction enabling the court to investigate the application properly.
2. Trade marks. The use of the Marmite image was unequivocally political. Unilever had difficulty showing use in the course of trade and use in relation to identifiable goods or services, as required by section 10(3) of the Trade Marks Act 1994. This claim was more likely than not to fail and did not clearly meet either threshold.
3. Copyright. Unilever was highly likely to establish ownership or exclusive licence of copyright in the artistic work comprising the current label. There was prima facie copying and making available to the public. A public-interest defence under section 171(3) of the Copyright, Designs and Patents Act 1988 was unlikely to assist under the existing authorities, although the judge observed that the law might develop further in a political context. The claim met both thresholds.
4. Passing off. Comments on the BNP website provided evidence that viewers might believe Unilever had endorsed or sponsored the BNP. The passing-off claim met both thresholds.
5. Risk of injustice and order. The continuing availability of the clip elsewhere, the possible mocked-up image, the absence of undertakings and the defendants’ equivocal attitude made the risk of further use real. The balance of the risk of injustice strongly favoured a short injunction. An injunction was granted for seven days, with its precise terms requiring further consideration.