C introduced new product into UK: chips that could be cooked in oven. Sold product under name ‘McCain Oven Chips’. Year later D introduced their own version of product which they sold as ‘Birds Eye Oven Chips’. C alleged passing off. D alleged “Oven Chips” was descriptive and therefore C could not have monopoly over it. Held:
· See notes.
· Name has no secondary meaning where it simply informs customers what the nature of the product is.
i) “McCain” indicated the source of the product
ii) “Oven Chips” merely indicated the nature of the product
· I.e. important factor in case seemed to be that McCain had put their own brand name in front of phrase “oven chips”
Ø Thus was inferred that they knew term “oven chips” was descriptive, and that they felt the need to distinguish themselves
· Case might have been decided differently if McCain had simply sold product as “Oven Chips”