JUDGMENT : Templeman L.J. - This is an appeal against an order of Lawson J. on 24th April, 1980 sitting in the queen's Bench Division whereby he granted an injunction by way of interlocutory relief in a passing off action. Frozen foods, including vegetables packaged and prepared for cooking, have been on sale for a number of years anti from the evidence which we have received in these proceedings it appears that packages of different foods have necessarily some similar characteristics. Each package commonly consists of a sealed soft plastic container, sometimes transparent and sometimes containing a pictorial representation of the contents, and an indication of the method of cooking. The product is further identified by an appropriate name which may be a descriptive name or a fancy name, and the package is printed with the brand name of the supplier so as to distinguish his products from the brands of other suppliers. The package also contains printed information, including instructions on cooking, weight and ingredients. The consumer must first identify the product he is looking for, or be tempted by the product which catches his eye and he must then select the brand according to price and according to taste unless he takes the robust view that there is no difference between brands except the cost of advertising. Until 1979 chipped potatoes of various brands were on the market thus packaged and prepared and they required to be cooked by the consumer by the process of immersing and frying the chips in boiling oil. In January 1979 the plaintiffs. McCain International Limited, launched on the market chipped potatoes which required to be cooked by the process of baking the chips in the oven, or by cooking them under a grill. The plaintiff of s' packages was typical; that is to say, it was a sealed soft plastic container. It was yellow and brown, a colour scheme which is not unheard of amongst suppliers of potatoes in packets. The packet bore in the top left hand corner, prominently, the plaintiffs' brand name, McCain, in a style of writing and with a star forming a dot over the "i" which is a mark of the plaintiffs and used by them to distinguish their products from the products of other suppliers. The packet bore in the top left hand corner, prominently, the plaintiffs' brand name, McCain, in a style of writing and with a star forming a dot over the "i" which is a mark of the plaintiffs and used by them to distinguish their products from the products of other suppliers. The packet contained the word "new" and across the middle, telling the consumer what was inside there were the words "Oven Chips" Under that were the words "straight cut" which conveyed to the informed consumer that these chips were not wrinkled but straight, and the laudatory comment "deep fried taste WITHOUT deep frying", and the message that there was no oil, no mess, and no smell. There was a representation of an oven with chips being cooked in the oven. On the back of the packet there were cooking instructions for the oven method and the grill method. Throughout these instructions there were reference to "new McCain oven chips" and to "McCain oven chips", and in the bottom right-hand corner there were the name and address of the producer, McCain Foods, Scarborough, Yorkshire, England. The package achieved its purpose of informing the consumer that the contents consisted of potato chips prepared for cooking in the oven and supplied by the plaintiffs. The plaintiffs conducted an extensive advertising campaign in which they referred consistently and accurately to McCain oven chips, in the same way as they so referred consistently. extensively and accurately in their packaging. In my judgement the teaching of the plaintiffs' packaging and the teaching of the plaintiff's advertisements was to the effect that here was a new product called "Oven chips which were chipped potatoes prepared for cooking in the oven and to the effect that McCain were suppliers of this product. But the implication to the consumer, whether accustomed to frozen foods or not, was that what was being sold was McCain oven chips and that there was a distinction between McCain oven chips and the oven chips of any other supplier such as Sainsbury, Tesco, Country Fair, or Birds Eye, In fact after January 1979 and upto date, the plaintiffs' brand of oven chips has been the only brand, although other suppliers have marketed potato chips prepared for cooking in the oven under the name "oven ready chips" and under one or two fancy names, as they were entitled to do. The defendants now wish to market oven chips and to call them in the one case "Country Fair oven chips", and in the other case, "Birds Eye oven chips". The names, Country Fair and Birds Eye, correspond to the name "McCain" in identifying the particular brand and the particular manufacturers and supplier of the goods in question. We have inspected the proposed packaging and I am satisfied that there is no risk of confusion between the plaintiffs' "McCain oven chips" on the one hand and the defendants" Country Fair oven Chips" and Birds Eye oven chips" on the other hand. Both the Country Fair and Birds Eye packets are in yellow and brown. As I say, that is a common colouring for potatoes so as to distinguish to the eye of the consumer the generality of potatoes as opposed to green vegetables which frequently are encased in appropriately green containers. In the case of Country Fair, above the word "oven chips" in the place of the words "McCain" there is a representation of a rural scene with the name "Country Fair" in a medallion, and that is the well-known trade mark of Country Fair Foods Limited. In the same way as in the McCain package, the information and the title refer to the name the supplier and the name of the product ; in the case McCain oven chips and in the other case Country Fair oven chips. A similar practice is adopted by Birds Eye and they have their familiar trade mark of a bird with the word "Birds Eye" in red against a blue background in the middle of a medallion. In seems to me that any consumer will be able to distinguish between the plaintiffs' brand of oven chips and either of the defendant's brands of oven chips. This is not a case where any consumer will fall into the error of assuming that oven chips marketed with the Country Fair or Birds Eye Brand have some connection with the plaintiffs' McCain oven chips, merely because McCain oven chips have been only oven chips on the market for a period of 18 months or for any other reason. These are all well-known brand names and must be known to be competitive. If there is no actual confusion, wherein lies the harm in the defendants using the name "oven chips" ? These are all well-known brand names and must be known to be competitive. If there is no actual confusion, wherein lies the harm in the defendants using the name "oven chips" ? As a practical matter it is suggested that a consumer who has purchased McCain over chips for many months may order oven chips without bothering to give the brand name and expecting to receive the McCain brand, and that the plaintiffs will then suffer if the shop keeper, on receiving that order, chooses to supply one of the rival brands of oven chips from Country Fair or Birds Eye. In my judgment this is not likely to happen very often in a field where the consumer is accustomed to making a choice between various brands of the same product and if there is any difficulty it is caused by the fact that the plaintiffs have chosen a descriptive and not a fancy name, namely, oven chips, meaning potato chips ready for oven cooking. Mr. Harman, in a very forceful and if I may say so, very attractive argument, submitted that "oven chips" is a fancy name and not a pharase in common use in the English Language so that it will be associated with one particular manufacturer and not with a product. He said it is a novel phrase-and that is true ; it has never been used before that also is true, He castigated the phrase an ungrammitical aggregate of two English nouns and said that it was nonsensical without an explanation. But in my judgment the words "oven chips", grammatical or not constitute an expression which is an ingenious and apt description of the contents, namely, patato chips prepared for cooking in the oven; and although the consumer may not have been aware, and could not have been aware of what the expression meant until oven chips came on to the market, once they had come on the market he could recognise a name which is apt and appropriate to describe a produce rather than a manufacturer, tile product being potato chips prepared for cooking in the oven. The fact that the name 'oven chips" does not indicate that the chips may also be grilled is neither here not there. The name does inform the consumer of what is inside the package so that he may know what he is purchasing. The fact that the name 'oven chips" does not indicate that the chips may also be grilled is neither here not there. The name does inform the consumer of what is inside the package so that he may know what he is purchasing. The authorities, many of which, unavoidably, were not considered by the learned judge, disclose that there is0a very real distinction in passing off litigation between a fancy name and a descriptive name. A fancy name which is not descriptive of a product can only indicate that the product bearing that name, is, or is licensed by, or is derived from one and the same supplier. Thus in Spalding & Bros. v. Gamage Ltd., (1915) 32 R P.C. 273, the plaintiffs described their football as "Orb footwall. Mr. Harman submitted that might be a descriptive phrase, but in my judgement it was a fancy name in that nobody would have dreamed of connecting a footwall with an orb in normal speech, and as it was a fancy name the defendants could not use the same fancy name without thereby representing that their goods were the goods of the plaintiff. In my judgement a fancy name is an indication of a single source and that is why it is impossible, generally speaking, for a defendant to appropriate the same fancy name without committing the tort of passing off. A descriptive name, on the other hand, does not indicate the source of the goods, but the nature of the goods. In the present case, the name "oven chips" is a descriptive name which is not so far fetched or fanciful as to indicate that all oven chips emanate from the same source. Indeed the plaintiffs themselves appear to have recognise L.d that the expression "oven chips" is not in itself a fancy name which indicates a single source or origin. That is why they have consistently referred in their literature and in their packaging to "McCain oven chips". In my judgement they found it necessary or prudent to do so in order to distinguish their brand of oven chips from any other brand. The expressing "oven chips" in my judgement identifies the product and the name "McCain", identifies the manufacturer who is responsible for that particular brand of that product. In my judgement they found it necessary or prudent to do so in order to distinguish their brand of oven chips from any other brand. The expressing "oven chips" in my judgement identifies the product and the name "McCain", identifies the manufacturer who is responsible for that particular brand of that product. In his judgment the learned judge referred only to one of the authorities dealing with this branch of the law and that was the case of Reddaway v. Banham, (1896) A.C. 199. That was, however, an extraordinary case which merely decided that the use of a descriptive term does not necessarily defeat a claim for passing off. Moreover the expression in that case, which was "Camel-hair Belting" had always been regarded as a fancy name, it being thought that there was no connection between the animal and the product. Lord Herschell said at page 213 that "there was ample evidence to justify, it, that the words "camel hair" had in the trade acquired a secondary signification in connection with being, that they did not convey to persons dealing in belting the idea that it was made of camel's hair, but that it was belting manufactured by the plaintiffs". The plaintiffs had succeeded in establishing that secondary signification between the year 1879 and 1891 and there was ample evidence as to the existence of that secondary meaning. In the present case, not only is the period only 18 months, but it seems to me that it is quite impossible for the plaintiffs to establish that a secondary meaning has been attached to anything other than that which is claimed on their own packet and what is claimed on their own packet is "McCain oven chips" I have no doubt that in the trade, both as regards consumers and retailers, the name "McCain oven chips" means those oven chips made by the plaintiffs, but the words "oven chips" simpliciter never have been used in isolation by the plaintiffs. There has been neither the opportunity nor the time for people to form the impression that the only makers of oven chips are and will remain McCain. It must be remembered that in the field of frozen foods the consumer is accustomed to different brands of the same or similar products and is accustomed to competing brands coming on to the market at different times. It must be remembered that in the field of frozen foods the consumer is accustomed to different brands of the same or similar products and is accustomed to competing brands coming on to the market at different times. There are other authorities which seem to me to be nearer to the present. The first is Parsons v. Gillespie (1898) A. C. 239, where the plaintiffs failed to establish a monopoly to the expression "Flaked Oatmeal". Lord Hob-house, delivering the judgment of the Privy Council, said at page 244, in words which seem to me to be applicable to the present case: "The plaintiffs then must shew either that the term "Flaked Oatmeal" is not part of the common stock of language in the sense that is not a term of description, but is of an arbitrary or fanciful nature invented by the plaintiffs which the inventor may claim to have appropriated; or they must shew that the term, being originally a description of the articles itself, has come to practice to denote goods made by the plaintiffs." To the argument, which was similar to the argument advanced in this case by Mr. Harman, that the expression 'Flaked Oatmeal" was novel and in accurate, His Lordship replied that the name was nevertheless an appropriate description. And to the argument, which again was put forward here, on the secondary use of the name, that there was evidence of a number of retailers who said that when customers asked for flaked Oatmeal they supplied the plaintiffs' flaked oatmeal, His Lordships replied that for five or six years nobody except the plaintiffs purported to sell goods under that name, and he said at page 246: "That seems to their - Lordships somewhat slender evidence to prove such a general association of the name of the product with the producer as to entitle the plaintiffs to say that the use of the name by another is an encroachment on their rights." In that case it will be observed that the plaintiffs had not provided ready and effective method of identifying their brand of the product as distinct from the brands of other suppliers by attaching their name or registered trade mark 'c description of the goods. They had merely claimed "flaked oatmeal" without attaching to it, as the plaintiffs have done in the present case, an indication of the source of the particular oven chips which they are selling. In Cellular Clothing Company Limited v. Maxton & Murray (1899) A.C. 326, 336 in words which are again applicable to the present case. Lord Hilsbury said: "......Where you are dealing with a name which is properly descriptive of the article the burden is very great to shew that by reason of your using that name descriptive of the article you are selling, you are affecting to sell the goods of the somebody else." He continued, referring to the Reddaway v. Banham case: "Certainly the Camel-hair Belting case may be are example of what under ordinary circumstances, it would be very difficult to establish ; but it was established there." At page 339 Lord Shand drew a distinction between an invented or fancy word used as a name which he had no relations, or "at least no direct relation to the character or quality of the goods which are to be sold under that name" on the one hand, and to a totally different principle which must apply in she case of goods which are sold under a merely descriptive name. He continued: "If a person employing a word or term of well-known signification and in ordinary use...... is yet able to acquire the right to appropriate a word or term ordinary use in the English language to describe his goods, and to shut others out from the use of this descriptive term, he would really acquire a right much more valuable than either a patent or a trade mark for he and his successors in business would gain the exclusive right, not for a limited time as in the case of patent, but for all time coming, to use the word as applicable to goods which others may be desirous of manufacturing and are entitled to manufacture and sell as much as he is. That being "so, it appears to me that the utmost difficulty should be put in the way of any one who seeks to adopt and use exclusively as his own a merely descriptive term." Again, in referring to the case of Reddaway v. Banham, he said: "......it no doubt she was it is possible where a descriptive name has been used to prove that so general, I should rather say so universal, has been the use of it as to give it a secondary meaning..... But I confess I have always thought, and I still think, that it should be made almost impossible for any one to obtain the exclusive right to the use of a word or term which is in ordinary use in our language and which is descriptive only and indeed, were it not for the decision in Reddaway's case, I should say this should be made altogether impossible". Mr. Harman seeks to draw a distinction between the words used by lord Shand and others in the authorities which refer to merely descriptive names, and the present case where he says the name is novel and not truly descriptive. It seems to me there may be gradations between a fancy name which means nothing, and a name which has words, or a combination of words which are only appropriate to the goods which are put on sale. In my judgment, the distinction is between a name which is descriptive of the product and a name which is distinctive of the manufacturer. In the present case the word "Oven chips" are distinctive of the product, and the words "McCain oven chips" refer to the brand of the product which is put on sale by the plaintiffs. In my judgment, the distinction is between a name which is descriptive of the product and a name which is distinctive of the manufacturer. In the present case the word "Oven chips" are distinctive of the product, and the words "McCain oven chips" refer to the brand of the product which is put on sale by the plaintiffs. Similarly in the same case at page 344, again in words which I find helpful in the present case because they deal with the invention of a new product, Lord Davey said this: "......Where a man produces or invents, if you please, a new articles and attach is a descriptive name to it a name which, as the article has not been produced before, has, of course, not been used in connection with the article and secures for himself either a legal monopoly or a monopoly in fact of the sale of that article for a certain time, the evidence of persons who come forward and say that the name in question suggests to their minds and is associated by them with the plaintiffs' goods alone is of a very slender character, for the simple reason that the plaintiff was the only maker of the goods during the time that his monopoly lasted, and therefore there was nothing to compare with it, and anybody who wanted the goods had no shop to go to, or no merchant or manufacturer to resort to, except the plaintiff..... If a man i,. vents a new article and protects it by a patent......he has a legal monopoly ; but when the patent expires all the world may make the article, and if they may make the article they may say that they are making the article, and for that purpose use the name which the patentee has attached to it......But the same thing in principle must apply where a man has not taken out a patent, as in the present case, but has a virtual monopoly because other manufacturers, although they are entitled to do so, have not in fact commenced to make the article. He brings the article before the world, he gives it a name descriptive of the article; and all the world may make the article, ant all the world may tell the public what article it is they make, and for that purpose they may prim[ facie use the name by which the article is known in the market." Here the plaintiffs have brought the article oven chips before the world, they have given it a name descriptive of that article, they have had a monopoly in it before other persons have entered into competition with them and they cannot now claim a monopoly of that name. All they can claim is that other persons who make the same article shall distinguish their products by the appropriate means, which the defendants have adopted in this case, of making it quite clear that the products they produce come from Country Fair and Birds Eye respectively. The next case was Burberrys v. Cording a decision of Parker J. (1909) 26 R.P.C. 693 which concern the use of the word -Slip-on". At page 701 Parker J. reiterated thus "......no one can claim monopoly rights in the use of a word or name. On the other hand, no one is entitled by the use of any word or name, or indeed in any other way, to represent the goods as being the goods of another to that others injury...... If the use of a word or name be restrained, it can only be on the ground that such use involves a misrepresentations, and that such misrepresentation has injured, or is calculated to injure another in his trade or business". In the present case I am not satisfied that the use of "oven chips" says anything to the consumer about the source or maker of those oven chips, especially when, as I have said, care is taken to bring to the attention of the public the brand which is being put before them. His Lordship continued: "It is important for this purpose to consider whether the ward or name is prima facie in the nature of a fancy word or name, or whether it is prima facie descriptive of the article in respect of which it is used. His Lordship continued: "It is important for this purpose to consider whether the ward or name is prima facie in the nature of a fancy word or name, or whether it is prima facie descriptive of the article in respect of which it is used. It is also important for the same purpose to consider is history, the nature of its use by the person who seeks the injunction, and the extent to which it is or has been used by other. If the word or name is prima facie descriptive or be in general use, the difficulty of establishing the probability of deception is greatly increased. Again, if the person who seeks the injunction has not used the word or name simply for the purpose of distinguishing his own goods from the goods of others, but primarily for the purpose of denoting or describing the particular kind of article to which he has applied it, and only secondarily, if at all, for the purposes of distinguishing his own goods, it will be more difficult for him to establish the probability of deception. But whatever be the nature of history of the word or name, in whatever way it has been used, either by the person seeking the injunction or by others, it is necessary, where there has been no actual deception, to establish at least a reasonable probability of deception." In the present case I am satisfied that the name "oven chips" was used primarily for the purpose of denoting or describing a particular kind of article and not for the purpose of establishing the source or origin. Parker J. further said at page 704, line 26, dealing with the words "slip-on" but in language which may also be used in relation to the words "oven chips": "When a witness says that he knows the word "Slip on" as meaning, not only a particular kind of coat, but the coat of a particular manufacturer, it is material to know whether he is acquainted with the article as made by any one else. If he is not, the word, however, it may be associated in his mind with the particular manufacture is not really to him a distinctive word." And at page 707, dealing with the evidence in that case, he said that there were a great number of traders in all parts of the country who consider that "Slip-on" meant a Burberrys coat. His Lordship concluded, as I conclude in the present case, that there will be no deception because of the different trade mark. Parkar J. continued: "Many of them would, however, quite apart from any question of deception, consider that (the defendant) were acting unfairly by (the plaintiffs) in using a word which the latter had rendered popular at a vast expenditure in advertisement. This expenditure they think entitled (the plaintiffs) to consider the word as a trade asset in which they had a valuable monopoly and they would not think it right to use the word of their own goods, though it is a word which aptly describes such goods." But the learned judge goes on: "......this mode of procedure may have its own disadvantages......it is dangerous for a trader to allow the word he chooses to become the popular name of the article to which it is applied, and it is dangerous to choose a descriptive word. If the word is descriptive or becomes the name of the article, it will be difficult, if not impossible, to prove that it is distinctive of his own goods or that there will be any deception in its use by others. and apart from the Trade.Marks Acts, the right of anyone to the exclusive use of a word is always limited by the possibilities of its use by others without any risk of deception. and apart from the Trade.Marks Acts, the right of anyone to the exclusive use of a word is always limited by the possibilities of its use by others without any risk of deception. I have come to the conclusion that as far as the trade is concerned whatever traders may think of the moral claim of the plaintiffs to the exclusive use of the word "Slip-on", there is no reasonable probability of any of them being deceived by what the defendants have done or are doing." Those words seem to me to apply with great force to the present instance McCains feel and I have sympathy with them in this-that they introduced a novel product, they gave it novel words, they have spent a lot of money on advertising, and other people ought not to come along and use those same words. But that is not the test in passing off. The test is whether there is any deception, So far as the law is concerned, as Parker J. has said, there is no right to exclusive use of the words, providing that the use made of it does not deceive the public into thinking that the goods of the plaintiffs are the goods of the defendants, or vice-versa. Similarly, again in a case which seems to me to be very helpful in the present context, Horlick's Malted Milk Co. v. Summer skill, (1916) 33 R.P.C. 108, the manufacturers of Horlick's malted milk were unable to restrain the defendants from selling "Headley's Malted Milk" because in the same way as in the present instance Birds Eye oven chips are not easily to be confused wish McCain's oven chips so Headley's malted milk was sufficiently distinct from Horlick's malted milk. At page 113, Lord Cozens-Hardy M.R., said: "The question really resolves itself into this . Have the plaintiffs, by the fact of this virtual monopoly which they have enjoyed in this country for a considerable number of years, the right to prevent the defendant from selling also malted milk without any similarity in the wrappers, with a clear distinction of the name, he putting the name "Headley" in front of the words "Malted Milk" just in the same way as horlick's is in the plaintiffs' malted milk ? That leaves us to consider what is the meaning of the term -Malted Milk". That leaves us to consider what is the meaning of the term -Malted Milk". It was said in that case, as it is said in this, that the words are inappropriate, that "there cannot be malting, in the sense in which barley is malted, except where cereals are operated upon". In the end the learned judge decided that "malted" had a meaning, when allied to the word "milk" which was recognizable and which described the product. He said at page 114 line 25: "It is extremely difficult-so much so, I think, as to be almost impossible-for a trader to get any protection in respect of a word which is descriptive, and nonetheless descriptive because it may not be such as chemists would use in this case." In the same case, Phillimore L.J., on the same page at line 45, said : "I start by inquiring whether "Malted Milk" is a true description of a class of goods, and a class of goods which includes the defendants' goods, and whether or not also the plaintiffs'. By "true" it is not necessary that the words should be scientifically exact, it is enough that they convey a real and not a deceptive meaning to the purchasing public." The words, "oven chips", in my judgement, convey a real' and not a deceptive meaning to the purchasing public. I pause to say that in the Horlick's case, Horlicks had used the word without competition from anybody else for a period of 25 years or so and even that did not avail them, and the House of Lords, when considering the same case on appeal in 34 R.P.C., 63, came to the same conclusion, Earl Lore burn, at page 67, saying that "maled milk" is "merely descriptive of milk which is combined or prepared with, malt or with extract of malt." Earl Lore burn continued: "The claim really is for a part of designation which the plaintiffs have been in the habit of using. They have been in the habit of using the term "Horlick's Malted Milk". They now eliminate the word "Horlick" and ask that the remainder of their description shall be prohibited to the defendant." All that applies with equal force to the present case where the plaintiffs introduced an expression, namely, "oven chips" which is merely descriptive of chipped potatoes prepared for cooking in the oven. They now eliminate the word "Horlick" and ask that the remainder of their description shall be prohibited to the defendant." All that applies with equal force to the present case where the plaintiffs introduced an expression, namely, "oven chips" which is merely descriptive of chipped potatoes prepared for cooking in the oven. They have been in the habit of using the teen-'McCain oven chips', and as appears from the writ and from the injunction which they have obtained, they now eliminate the word "McCain" and ask that the remainder of the description, the words -'oven chips'', be prohibited to the defendants.. The writ and the injunction both claim an injunction against passing off by the use of-'the words "oven chips" or any colourable imitation thereof. Earl Lore-burn said that was not allowed. Lord Sh w said: "......when a name, truly descriptive of an article, has always been associated with the particular name of the manufacturer, then a monopoly of the name of the article, apart from the name of the manufacturer, is almost impossible to acquire; and, accordingly, it is almost impossible to succeed in a passing off action, the substantial ground of which would be the assumed possession of such a monopoly." I bear in mind Mr. Harman's submission that the words "oven chips" are not truly descriptive of an article, but in my judgement they are just as truly descriptive of the article in the present case as the expression "malted milk" was descriptive of the article which went under the name of "Malted Milk" and which Horlicks could not prevent being sold under the name "Headley's Malted Milk". 'In Office Cleaning Service Ltd. v. Westminster Window and General Cleaners Ltd. (1946) 63 R.P.C. 39, the plaintiffs, having traded under the style "Or3'ice Cleaning Services'', were unable to prevent the defendants trading under the style "Office Cleaning Association". In many ways that is different from the present, because, as Mr. Harman pointed out, there is nothing novel or un-English or ungrammitical about the expression "Office Cleaning" so I do not think that case is of-any great assistance, save this : at page 42 lines 27 Lord Simonds said: "...... In many ways that is different from the present, because, as Mr. Harman pointed out, there is nothing novel or un-English or ungrammitical about the expression "Office Cleaning" so I do not think that case is of-any great assistance, save this : at page 42 lines 27 Lord Simonds said: "...... Courts will not readily assume that the use by a trader as part of his trade name of descriptive words already used by another trader as part of his trade name is likely to cause confusion and will easily accept small difference as adequate to avoid it. It is otherwise where a fancy word has been chosen as part of the name. Then it is that fancy word which is discriminatory and upon which the attention is fixed, and if another trader takes, that word as part of his trade name with only a slight variation or addition, he may well be said to invite confusion. For why else did he adopt it?' Mr. Harman asks rhetorically why, in the present case, do the defendants wish to adopted the name "oven chips", and the answer, as I have already indicated, is that it is a very appropriate, apt and neat description of the product, and the fact that the plaintiffs introduced the product and invented the words does not unfortunately for them give them a monopoly in the name. What they must show is misrepresentation of their goods. Mr. Harman then cited a case which I gather he cited to the learned judge though it is not referred to in his judgement, Delavelle (G.B.) Ltd. v. Harry Stanley, (1946) 63 R.P.C. 133, where the plaintiffs sold brilliantine under the brand name of "Blue Orchid". It does not seem to me that case is of any assistance in the present case because in my judgment "Blue Orchid" was a fancy name when used in connection with brilliantine and it falls on the fancy name side of the line. Mr. Harman also referred to the Legal and General Assurance Soc. Ltd v. Danial, (1968) R.P.C. 253. That seems to me to be a very different case indeed. Mr. Harman also referred to the Legal and General Assurance Soc. Ltd v. Danial, (1968) R.P.C. 253. That seems to me to be a very different case indeed. All it established is that if one firm uses the name as part of its title, Legal and General, for nearly 130 years and has assets of # 804 million, it is a bold man who will use the words "Legal and General", ordinary though they may be, in conjunction with any business, and yet attempt to say that there will be no confusion between the Legal and General Corporation and his own activities. That does not assist in the present case. Similarly in Pickwick International Inc. (G. B.) Ltd. v. Multiple Sound Distributors Ltd., (1972) R. P. C. 786 Megarry J., as he then was, decided that there was a danger of confusion between a gramophone record called "Top of the Pops" and a gramophone record called "Pick of the Pops. That, in my judgment, was simply a case where the learned judge came to the conclusion and one can see why he did-that there was a danger of consumers confusing the two names. In the present case, there is no danger of consumers confusing the brand of oven chips which is emblazoned with the crest of Country Fair of Birds Eye and the brand of oven chips which is emblazoned with the name of McCain. There were two more cases to which Mr. Harman referred. The first was Computer vision Corporation v. Computer Vision Limited, (1975) R. P. C. 171, where the plaintiffs used the words "Computer-vision Corporation" and the defendants' title was Computer Vision Limited. That is a straight-forward case where it was impossible for the defendants to say that trading under the name which they embraced there was no possibility of confusion between their goods and the plaintiffs' goods. Similarly I do not think that Ervan Warning B.V. v. J. Townend and Sons (Hull) Ltd., (1979) A. C. 731 is of assistance in the present instance. It established that protection is available to a member of a class which makes a particular-product with particular ingredients. Mr. Harman read passages from the speech of Lord Diplock in which in effect he said that the law of passing off must keep up with changing conditions in the commercial world. In my judgment that case does not enable Mr. It established that protection is available to a member of a class which makes a particular-product with particular ingredients. Mr. Harman read passages from the speech of Lord Diplock in which in effect he said that the law of passing off must keep up with changing conditions in the commercial world. In my judgment that case does not enable Mr. Harman, much though he may wish to do so, to establish the principle which the authorities have rejected in the past that there is some monopoly right attached to a novel name 'describing a' novel product. As the authorities have indicated there is no such monopoly and all the defendant has to do is to show that there is no danger of deception. True, the plaintiffs, as in the Camel hair case, could, if there was sufficient evidence, show that the name has become indelibly linked to their manufacture and their manufacturer alone so that everybody would consider That the name itself was attached to the manufacturers, but. as L have indicated, first of all there has been insufficient time to establish the indelible link Secondly, the accurate description of these goods does not permit of the argument, and thirdly, the plaintiffs themselves, by labelling their produce "McCain oven chips" have in a sense made it easy for the defendants to disperse the possibility of confusion by labelling, their oven chips with their own brand name. It does not seem to me in the light of the admitted facts and of the evidence, and in the light of the authorities to which I have referred, that the plaintiffs have established a triable issue which justifies the granting of an injunction pending trial. Shortly, the word 'Oven chips" are in my judgment descriptive of the product and the defendants will not, by using those words in conjunction with their own brand name represent, and no reasonable person would infer that the goods sold by the defendants are to have some association with the plaintiffs' goods, there is no danger of actual confusion and the plaintiffs, by their advertisements and by their evidence, have not succeeded in establishing that the words "oven chips" mean, and must mean, potato chips supplied by the plaintiffs and nobody else. The learned judge took the view" that the expression "Oven chips,, is not purely descriptive of the product; it is partly descriptive "Chips"-and partly consists of a method of preparation which may be utilised by the consumer". In my judgment the test is whether the expression "Oven Chips" is descriptive of the product or whether it is intended to be a badge of the manufacturer. The fact that "chips" is undoubtedly descriptive and that "oven" is descriptive of the method of preparation does not prevent the expression being descriptive in the sense in which that term is used in passing off litigation as opposed to a fancy name. The learned judge continued: "It is not suggested that anyone else had used these two words in just a position until the introduction of the product by the plaintiffs before which no one would have assumed you could do anything with chips in the oven except burn them". In my judgement that is falling into the trap of saying that because the product was novel and the name was novel, therefore, the plaintiffs are entitled to a monopoly in the name. As I think I have shown from the authorities, that is not the law. On the contrary if the plaintiffs introduce a novel product with novel words, but they take the risk of choosing descriptive words, then they run the risk that the defendants cannot be prevented from using those same descriptive words so long as they make it clear that their brands of the product are not the same as the brand of the plaintiffs. The learned judge continued: "......there has been a substantial volume of sales of oven chips and I am satisfied on the evidence that "Oven Chips" has become distinctive of the plaintiffs' product and no one else's". With respect it seems to me impossible to reach that conclusion when there has not been a substantial sale of oven chips, but a substantial sale of McCain oven chips and there is not, and there could not be, any evidence of what the reaction of consumers would be if what had been sold over the counter were oven chips without the name McCain. Then as a subsidiary reason the learned judge came to the conclusion that there was a danger of a "substantial risk of confusion in the minds of the consumer" between the packets. Then as a subsidiary reason the learned judge came to the conclusion that there was a danger of a "substantial risk of confusion in the minds of the consumer" between the packets. He said "they are not dissimilar in appearance since the manufacturer's name occupies only a small part of the packet... the points of similarity between the bags are likely to cause confusion to customers". On each of the three exhibits put before us the brand name of the manufacturer is prominent and not to be missed by consumers who, as I have said, in this field must choose firstly the product which they wish to buy, or are tempted to buy, and, secondly, choose between different brands of those goods. For my part I cannot think that there is any real danger of confusion. For those reasons, and having the advantage denied to the judge of a full citation of all the relevant authorities 1 would allow the appeal. Speaking for myself it seems to me that this is the sort of action which ought usefully to be brought in the Chancery Division in conformity with current practice. In that Division judges deal with passing off actions every week. They have built up a fund of expert se, knowledge and practice which is of assistance to the judges themselves, of great assistance to this court anal of great assistance to litigants. In the queen's Bench Division, though there may be other advantages, generally speaking there is not the time or opportunity for full references to the authorities, and this is a disadvantage which does not attach to the hearing of interlocutory injunction*in the Chancery Division where in relation to the authorities, the judges themselves will have previous knowledge. It was suggested that one reason for litigating in the Queen's Bench Division might be the factor of speed. It was suggested that one reason for litigating in the Queen's Bench Division might be the factor of speed. It does not accord with my experience that the Chancery Division is any slower than the Queen's Bench Division at issuing ex parte and some interlocutory orders So far as I am aware, that situation has not altered-it would be lamentable if it did alter-and although as I understand it there is no jurisdictional bar on a plaintiff beginning a passing off action in the Queen's Bench Division, in all the circumstances and in view of the present practice which may have changed since the turn of the century, it seems to me it would be more convenient for a case of this nature to be begun in, or to be transferred to the Chancery Division. But I speak entirely for myself and have not consulted any of my brethren. For the reasons which I have given I would allow this appeal and discharge the injunction. Stephenson L.J.-I agree for the reason given by Templeman L. J. that the learned judge's order was plainly wrong and should be set aside. Although there was some evidence of possible confusion between the plaintiffs' and the defendant's goods the learned judge was wrong, in my view, in being "satisfied on the evidence that "Oven Chips" has become distinctive of the plaintiffs' product and no one else's". A novel combination of ordinary English words,; though objectionable to a scholarly lover of the English language, may constitute a distinctive name identifying the goods it describes as the plaintiff's goods and calling for protection of his goodwill by an injunction. Such a combination may acquire such a distinctive character by use of which "Legal and General", See (1968) R.P.C. 253, may serve as an example. 1 do not think there is any real prospect of the plaintiffs proving such original or acquired distinction for the words "oven chips". There are in my opinion primarily descriptive, though it may be imperfectly because too compendiously descriptive, and they require the prefix "McCain's" to make them distinctive. 1 do not think there is any real prospect of the plaintiffs proving such original or acquired distinction for the words "oven chips". There are in my opinion primarily descriptive, though it may be imperfectly because too compendiously descriptive, and they require the prefix "McCain's" to make them distinctive. The defendants, in my judgement, have done, or will do enough, contrary to the opinion of the learned judge who may have underestimated the onus resting on the plaintiffs at this point, to distinguish their goods from the plaintiffs by prefixing their own names to "Oven Chips", and they ought not to be restrained even at this stage. I have not had an opportunity of ascertaining what volume of passing off work currently beings, continues or ends in the Queen's Bench Division, but I respectfully agree with what Temple man L. J. has said about the desirability of bringing these cases in the Chancery Division Proceeding under the Patent Acts, the Registered Designs Act and the Trade Marks Act are assigned by the Rules of the Supreme Court to that Division : 0.100 r 1 and 0.104 r 2 ; and the argument and authorities we have considered in this case at greater length than the learned judge, whose discretion we say was wrongly exercised-persuade me that proceeding in respect of passing off should generally be carried on in the same Division as those assigned proceedings. For the subject-matter of the one is closely allied to the subject-matter of the others is a considerable body of relevant decision of judges of the Chancery Division and higher courts on appeal from them, decisions which I should expect to be more familiar to the judges of that Division than to the judges of the Queen's Bench Division. Appeal Allowed. Defendants' costs in cause below and costs of appeal.