The “Initials-Distinction” Principle: Injunctions Framing Brand-Name Restraints Do Not Per Se Catch Related Acronyms
Comment on Choice Broadcasting Ltd v Bauer Audio Ireland Ltd [2025] IEHC 462

1. Introduction

Choice Broadcasting Ltd (“Choice”) – owner of Ireland’s Classic Hits Radio – sought to prevent its rival Bauer Audio Ireland Ltd (“Bauer”) from using the initials “GHR” after it had already secured an interim ex parte order restraining Bauer from using the words “Greatest Hits Radio”. The dispute arises in the highly competitive over-45 radio market where both parties trade in “retro” music formats. Having agreed to abide by the interim order, Bauer pivoted to the shorthand “GHR”. Choice contended that the original order already covered the initials or, failing that, that the injunction should be enlarged to restrain the acronym as well.

The High Court (Cregan J) refused. The judgment offers a detailed tour of (i) how courts interpret the scope of existing orders, (ii) the threshold for extending interlocutory relief in passing-off and trade-mark disputes, and (iii) the modern approach to undertakings as to damages where a claimant is balance-sheet insolvent. Most significantly, the Court crystallises a new organising idea – the Initials-Distinction Principle: unless an injunction expressly includes abbreviations, an order framed against a full brand name does not automatically prohibit the use of its acronym, particularly where the acronym is visually, aurally and conceptually distinct.

2. Summary of the Judgment

• Scope of the original order: The interim order of 20 June 2025 restrained use of the words “Greatest Hits Radio” only. Applying objective interpretation principles (P. Elliot v BATU; Müller v Shell), Cregan J held that a reasonable person would not consider the three letters “GHR” to be caught. Ambiguity, if any, must be resolved in favour of the restrained party.
• Extension of the injunction refused: Choice failed to raise a fair issue to be tried that the use of “GHR” amounts to passing-off or trade-mark infringement. Even had such a question existed, the balance of justice favoured refusal, especially given Bauer’s undertaking not to reveal the meaning of “GHR”.
• Undertaking as to damages: Although moot in light of the refusal, the Court scrutinised Choice’s capacity to honour its undertaking. Being balance-sheet insolvent and having granted an all-assets debenture, Choice would have needed its parent (Bay Broadcasting Ltd) to give a fortified undertaking.
• Alleged non-disclosure regarding “Rewind Radio”: The Court accepted Choice’s evidence that it was unaware of another DAB station’s use of “Greatest Hits” and found no lack of candour.
• Orders: Application dismissed. Original interim order remains but does not restrain “GHR”. Court reserved liberty to revisit the adequacy of Choice’s undertaking in respect of that interim order.

3. Analysis

3.1 Precedents Cited and Their Influence

• P. Elliot & Co Ltd v BATU [2006] IEHC 340 – Clarke J’s objective-observer test for contempt/interpretation of orders framed the Court’s analysis: a party cannot be said to breach where “reasonable doubt” exists.
• Müller v Shell EMP Ireland Ltd [2010] IEHC 238 – Kearns J: ambiguity resolved in favour of the alleged contemnor; reinforced the pro-defendant reading of interlocutory orders.
• Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65 – O’Donnell J’s restatement of the Irish American Cyanamid / Campus Oil approach supplied the checklist for granting interlocutory injunctions.
• McCambridge v Brennan Bakeries [2012] IESC 46 & Jacob Fruitfield v United Biscuits [2007] IEHC 368 – set out the “triple test” for passing-off.
• Galway Free Range Eggs v O’Brien [2019] IECA 8 – Costello J emphasised brand-name confusion over get-up; Choice relied heavily, but the Court distinguished it because here the comparison was initials vs words.
• Cofresco v Controller of Patents [2007] IEHC 187 – Finlay-Geoghegan J’s synthesis of EU trade-mark confusion principles (visual, aural, conceptual) guided the trade-mark limb of the analysis.
• Bristol-Myers Squibb v Norton (Teva) [2024] IECA 49 and Nolan v Dildar [2020] IEHC 243 – undertakings as to damages; onus on defendant to prove inadequacy, court’s discretion to require fortification.
• Dunne v DLRCC [2003] 1 IR 567 – Hardiman J on evidential burden in challenging undertakings.

3.2 Legal Reasoning

A. Interpretation of the Existing Order
The Court treated the interpretation exercise akin to contempt analysis: clarity is paramount and doubts accrue to the restrained party. The words “Greatest Hits Radio” identify a specific lexical sequence; a three-letter initialism is neither identical nor necessarily derivative. The judge placed weight on:

• Choice’s own framing at the ex parte stage – they consciously omitted initials when drafting relief.
• The plaintiff’s prior affidavit averring that “get-up” was not the issue.
• Objective metrics: a reasonable observer would not treat “GHR” as encompassed.

B. Passing-Off
Applying Reckitt v Bordan / McCambridge, the Court examined: (i) goodwill, (ii) misrepresentation, (iii) damage. Goodwill was uncontested. Misrepresentation failed because:

• Visual dissimilarity (colours, shapes, words vs initials).
• Aural dissimilarity – “gee-aitch-ar” vs “classic hits”.
• Conceptual gap – initials are “severable” and do not evoke “Classic”.

Distinguishing Galway Free Range Eggs, the Court stressed that the public is unlikely to infer any connection from “GHR”.

C. Trade-Mark Infringement
The mark “Classic Hits” contains only those words. Under s 14(2) 1996 Act and EU case-law, similarity must be assessed holistically across visual, aural and conceptual axes. The Court found no similarity and therefore no likelihood of confusion.

D. Balance of Convenience / Justice
Key factors:

• Bauer was already restrained from its primary brand; further restraint disproportionate.
• Bauer’s affidavit commitment not to reveal the meaning of “GHR”.
• Competition considerations – allowing entry under initials preserves market plurality pending trial.

E. Undertaking as to Damages
Despite the dismissal, the Court examined Choice’s financial capacity. Findings:

• Balance-sheet insolvent; €6 m intra-group debt; €1.1 m warehoused Revenue debt; all-assets debenture to UK lender.
• Cash-flow solvent and profitable (€1.4 m FY 2023).
• Parent company (Bay) profitable; Court would require a fortified undertaking from Bay if further injunctive relief were granted.

3.3 Likely Impact of the Decision

• Clarity in drafting and resisting injunctions: Practitioners must now draft brand-related restraints expressly including “any abbreviation, acronym or derivation”. Failure leaves a gap.
• Separate treatment for acronyms: The Initials-Distinction Principle will steer future disputes in telecoms, pharmaceuticals and digital media where three-letter brands abound (e.g., “SKY”, “EIR”).
• Passing-off litigation strategy: Emphasises the evidential gulf between word-for-word confusion and initials-to-words confusion; plaintiffs will need consumer survey evidence or clear phonetic overlap.
• Undertakings jurisprudence: Reiterates that balance-sheet insolvency is not fatal but invites fortification; promotes early financial disclosure and may deter tactical use of injunctions by thinly-capitalised entities.
• Media-market competition: Radio entrants may employ initials to sidestep interlocutory restraints, pending full trials, promoting competitive dynamics while protecting established goodwill in full word marks.

4. Complex Concepts Simplified

• Interlocutory Injunction: A temporary court order designed to preserve the status quo until the case is fully heard. It does not decide the ultimate merits.
• Passing-Off: A common-law tort preventing traders from misrepresenting their goods/services as those of another; proved by goodwill, misrepresentation, and damage.
• Trade-Mark Infringement (s 14(2) 1996 Act): Unauthorised use of a sign identical/similar to a registered mark causing a likelihood of consumer confusion.
• Undertaking as to Damages: A promise to compensate the restrained party if the injunction later proves unjustified; the “price” for interim relief.
• Fortified Undertaking: Supplementary security (e.g., parent-company guarantee, bond, escrow) ordered where the claimant’s financial strength is doubtful.
• Balance-Sheet Insolvent vs Cash-Flow Solvent: A company may have negative net assets (liabilities > assets) yet still meet debts when due because its operations generate adequate cash (cash-flow solvent).
• Objective-Observer Test: Orders are read through the eyes of a reasonable, informed person; ambiguity favours the alleged contemnor.

5. Conclusion

Choice Broadcasting v Bauer Audio erects a clear doctrinal signpost: judicial restraints track their wording, not the claimant’s assumptions. Unless an injunction expressly prohibits derived forms such as abbreviations or initials, a defendant remains free to deploy them, provided there is no independent passing-off or trade-mark infringement. The judgment also refreshes the methodology for assessing goodwill-based confusion, underscores the cumulative (not disjunctive) nature of similarity tests under trade-mark law, and sharpens the evidential obligations surrounding undertakings as to damages.

Practitioners should heed three practical lessons: (1) draft with linguistic precision, (2) gather concrete consumer-confusion evidence before challenging initials, and (3) anticipate searching scrutiny of financial robustness when seeking interim relief. In the broader landscape, the Initials-Distinction Principle will likely reverberate beyond broadcasting into any branding arena where condensed letter marks vie alongside full word marks. The High Court has signalled that in the battle of the airwaves – and of brands – brevity can be a lawful shield unless the claimant’s pleadings say otherwise.