The “Sheer Blueness” Doctrine – High Court Refines Passing-Off, Survey-Evidence and Balance-of-Convenience Tests in Interlocutory Injunctions

1. Introduction

In Yoplait Ireland Ltd v Nutricia Ireland Ltd (approved judgment of Barrett J, [2025] IEHC 301), the High Court granted an interlocutory injunction restraining Nutricia (a Danone company) from launching its new “Danone Skyr” range in Ireland. Yoplait asserted that the intended get-up (striking navy-blue pots displaying white mountains) was confusingly similar to its market-leading “Yoplait Skyr” products. The Court accepted that the “sheer blueness” dominating both packages generated a real risk of consumer confusion in the fast-moving grocery aisle, thereby satisfying the classic tripartite test for passing-off.

Although the dispute concerns yoghurt pots, the judgment establishes significant guidance on: (1) how Irish courts will apply the Supreme Court’s Merck v Clonmel framework when granting interim relief, (2) the evidential weight of consumer-survey research at the interlocutory stage, and (3) the threshold for misrepresentation based on colour-driven get-up alone. These clarifications will reverberate far beyond dairy products, impacting brand owners, trade-dress strategists and litigators alike.

2. Summary of the Judgment

Relief granted: An interlocutory injunction restraining Nutricia, its servants and agents, from placing on the Irish market Skyr products using the impugned get-up pending trial, conditional on Yoplait’s usual undertaking as to damages.
Key findings:
- Yoplait showed a strong prima facie case of goodwill in its navy-blue Skyr packaging.
- The dominant visual impression (“sheer blueness with white highlights”) is likely to mislead an average Irish supermarket consumer who spends fewer than five seconds selecting yoghurt.
- Yoplait’s Sentio survey—despite methodological criticisms—was sufficiently probative to reinforce the likelihood of confusion.
- Damage to goodwill is presumed where confusion is probable; damages would be difficult to quantify and hence inadequate.
- The balance of convenience favoured preserving the status quo where Yoplait is on-shelf and Danone is not yet launched.
Outcome on ancillary points: Alleged delay, foreign conduct by the parties, and Danone’s offers of sales-tracking undertakings did not displace the equitable preference for injunctive relief.

3. Analysis

3.1 Precedents Cited and Their Influence

Merck Sharp & Dohme v Clonmel Healthcare [2020] 2 I.R. 1 – The eight-step approach for interlocutory injunctions supplied the skeletal framework. Barrett J systematically applied each step.
Reckitt & Coleman v Borden (“Jif Lemon”) [1990] 1 W.L.R. 491 – The three cumulative elements of passing-off (goodwill, misrepresentation, damage) were the substantive yardstick, endorsed via Jacob Fruitfield v United Biscuits [2007].
McCambridge v Brennan Bakeries [2013] 1 I.L.R.M. 369 – Clarified that intention to deceive is unnecessary; foreseeability of damage suffices.
Contech Building Products [2006] IEHC 45; Miss World [2004] 2 I.R. 394 – Both underline the Court’s restrained role at the interim stage and the primacy of preserving the status quo.
SmithKline Beecham v Antigen [1999] 2 I.L.R.M. 190; Galway Free Range Eggs [2019] IECA 8 – Provide guidance on survey admissibility; used to temper scepticism while still accepting well-designed research.
Property-right cases (AIB v Diamond [2012] 3 I.R. 549) reinforced that goodwill is protectable property and a potent factor in the balance-of-convenience analysis.

3.2 Legal Reasoning

3.2.1 Passing-Off Assessment

Goodwill – Established through market leadership since 2022, heavy marketing spend, and even the defendant’s own expert’s concession that Yoplait possesses “considerable brand equity”.
Misrepresentation – On a rapid-purchase scenario, colour outweighs brand names. Photographs and physical exhibits demonstrated near-identical blue-white palettes. The Court relied on McCambridge’s objective foreseeability test.
Damage – Where confusion is probable, appropriation of goodwill is presumed (citing Falcon Travel). Quantification difficulties rendered damages inadequate.

3.2.2 Application of the Merck Eight-Step Test

Barrett J’s analysis tracks each Merck step, but three aspects loom large:

Adequacy of damages – Yoplait’s intangible goodwill could not be compensated with post-hoc accountancy.
Status quo – Danone had not yet entered the Irish market; thus, injunctive relief merely froze current realities.
Balance of convenience – Although Danone lamented pan-European redesign costs, these were quantifiable and, compared with Yoplait’s unquantifiable reputational loss, carried less weight.

3.2.3 Treatment of Survey Evidence

Despite traditional judicial scepticism, the 702-respondent Sentio survey was admitted and accorded evidential weight because:

Respondents reflected the relevant consumer cohort (Irish yoghurt buyers);
Non-leading “similarity” scales were used;
Findings showing a 20-point “net sameness” gap were statistically significant.

The Court distinguished earlier hostility (SmithKline) by noting that methodological shortcomings can be evaluated without cross-examination at interim stage and that absolute flaws were not demonstrated here.

3.3 Likely Impact of the Decision

Trade-dress strategy – Brand owners must appreciate that colour dominance alone can ground passing-off, even where house marks (e.g., “Danone”) are displayed.
Survey practice – Well-constructed, timely surveys can now realistically tip the balance at interlocutory hearings in Ireland.
Pan-European packaging – Multinationals may have to regionalise designs or risk injunctive blocks in smaller jurisdictions.
Expedited actions – The Court endorsed six-week commencement as sufficiently prompt; litigants must still act quickly or risk fatal delay.
Further litigation – The judgment signals a receptive attitude to innovative passing-off claims and may stimulate comparable actions in sectors such as cosmetics, beverages and OTC medicines.

4. Complex Concepts Simplified

Passing-off: A tort protecting business goodwill. Plaintiff must prove (1) goodwill, (2) misrepresentation, (3) damage.
Get-up: The overall external appearance or packaging of a product, including colour, shape, and graphic elements.
Interlocutory injunction: A temporary court order preserving positions until full trial.
Balance of convenience / justice: Comparison of harm each side may suffer from granting or refusing interim relief.
Goodwill: The “attractive force” that brings customers to a business, recognised as a proprietary right.
Status quo ante: The state of affairs before the alleged wrongful act; courts aim to maintain it pending trial.
Survey evidence: Market-research data offered to show consumer perception; courts scrutinise relevance, methodology and representativeness.

5. Conclusion

Yoplait v Nutricia heralds a notable evolution in Irish passing-off jurisprudence: it confirms that dominant colour schemes can, in isolation, constitute actionable get-up where rapid-decision purchasing is involved; it relaxes judicial hostility to survey evidence at the interim stage, provided methodological rigour is demonstrated; and it re-emphasises that intangible property rights in goodwill will normally tip the balance of convenience towards injunctive relief.

The “Sheer Blueness” doctrine is likely to resonate in future litigation, compelling businesses to conduct more nuanced risk assessments before rolling out harmonised packaging across multiple jurisdictions. For practitioners, the judgment supplies a detailed, step-by-step exemplar of how to marshal evidence, apply Merck, and navigate the accelerated timetable typical of fast-moving consumer-goods disputes. Above all, it underscores the High Court’s readiness to intervene swiftly to prevent market confusion—even before the first yoghurt pot reaches the shelf.