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.
· Thus:
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”
