In 2013, Mr Justice Gilligan refused an injunction sought by Galway Free Range Eggs Limited restraining Hillsbrook Eggs Limited from packaging or promoting their products under the name “O’Brien’s of Galway Free Range Eggs". The Court held that it was not satisfied that the packaging used by the defendant was likely to deceive the public but did accept that there were issues to put forward to trial.

The substantive High Court hearing was held recently before Mr Justice Tony O'Connor and one of the bigger issues before the Court was the use of survey evidence and the weight to be attached to such opinion evidence. The Court was highly sceptical of the value of market opinions and related questionnaires and stated that in this specific case "the evidence offered on behalf of the plaintiff concerning brand confusion was tenuous and unreliable".

The plaintiff did not allege that the defendants used certain graphic elements contained in their registered trademark but claimed that there was a breach by virtue of the defendant using the specific words “Galway Free Range Eggs” on their product packaging. The Court heard that the plaintiff had accepted that it did not have the exclusive right to the words “Galway”, “eggs” or “free range” (Section 15 of the Trade Marks Act 1996 provides that a trademark is not infringed by the use of a person’s own name or the use of indications concerning geographical origin provided that such use is in accordance with honest commercial practice) but it was submitted that the trademark gave the plaintiff rights in respect of the words “Galway Free Range Eggs” when used in that particular order.

In this case, the Court was left with limited survey evidence together with opinions of market analysts engaged by each of the parties who gave opinions on the surveys that they had compiled. The Court also noted that no independent retailers were called to give evidence as to whether confusion had occurred in the market place. The Court ultimately held that that the plaintiff had failed to establish misrepresentation leading to confusion between the egg boxes in question.