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Intellectual Property Law
: IPKatMalicious falsehood case
By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.
Ajinomoto is the manufacturer of the artificial sweetener, aspartame. The supermarket, Asda, commenced a campaign which was designed to ensure that, by the end of 2007, none of its 9,000 own-label food and soft-drinks products would contain any artificial colours or flavours or any hydrogenated fat or flavour enhancers. The catch-phrase used was 'NO HIDDEN NASTIES'. One of the statements used in conjunction with the catch-phrase was "No artificial colours or flavours and no aspartame" and "We promise that all good for you products are always low or lower in fat and won't ever contain any hydrogenated fat, artificial flavours, artificial colours or aspartame."Ajinomoto alleged that the natural and ordinary meaning of the words on the packaging is that aspartame is an especially harmful or unhealthy, or potentially harmful or unhealthy, sweetener and is one which consumers concerned for their own health and that of their families would do well to avoid, either altogether or in the quantities likely to be found in soft drinks and other food products.
In the recent decision, Sir Charles Gray had to decide whether to grant Ajimoto's request for a trial of the preliminary issue
"as to the statement(s) of fact contained in or conveyed by the words complained of in paragraphs 4 and 8 of the Particulars of Claim". The alternative would be to hold a single trial incorporating (i) the meaning of the statement; (ii) whether the statement was false and (iii) whether the statement was malicious.The judge held that in the interests of saving costs, it was right for the preliminary issue to be tried first. If Ajimoto's contention that the meaning of Asda's statements were that aspartame was harmful was rejected then there would be no issue as to falsity, and malice would not be relevant. The judge accepted that the issue of meaning was essentially a
"slam dunk" point. Separating the issue of meaning out into a preliminary trial was commonly used in defamation actions and would work here. However, the judge did suggest that the approach might be considered an abuse if it was used as a tactic to 'slice up' the action into three separate trials of meaning, falsity and malice.
Full post as published by IPKat on April 27, 2009 (boomark / email).
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