A legal battle over the traditional chocolate fudge treat known as the Chelsea Whopper has reached Scotland's highest court, with a family confectionary business claiming ownership and seeking substantial damages.
McCandlish Farmhouse Confectionery, based in Helensburgh, has filed a £1.1 million lawsuit against Michael Malone, who operates as Wee Troon Candy in Ayrshire. The company alleges trademark infringement and passing off, claiming Mr. Malone has been selling a similar product under the same name, causing loss of profits, reputational damage, and rebranding costs.
The Chelsea Whopper, a cocoa-dusted fudge-like finger treat marked in strips, was reportedly created shortly after the Second World War by a Colonel Hunt, with its name and packaging intended to evoke the Chelsea Pensioners. McCandlish Farmhouse Confectionery states that the rights to the product were purchased in 1994 by the company's founder, Allan McCandlish, who died in 2020. His daughter, Agnes Gough, who now runs the business, initiated the legal action after discovering Mr. Malone's products in sweet shops across several towns.
Mr. Malone, however, argued in court that 'Chelsea Whopper' is a generic term and that he did not require permission to use the name. During the proceedings, he agreed to cease selling any products using the name due to financial constraints that prevented him from contesting the case.
Despite Mr. Malone's agreement to stop using the name, Judge Lord Sandison ruled that he had infringed one of McCandlish Farmhouse Confectionery's registered trademarks. However, the judge denied the company any damages or expenses, criticizing their extensive pursuit of their rival.
Lord Sandison stated that Mrs. Gough had failed to provide evidence of financial loss or establish that her firm had built significant goodwill in relation to the product. "The evidence led entirely failed to establish the existence of any substantive goodwill attaching to the first pursuer’s product," the ruling stated. "No doubt there are people who like to buy and consume chocolate-flavoured fudge fingers covered in cocoa powder, but nothing was adduced to show that at least some of those people have sought out the first pursuer’s product in preference to others."
The judge found sufficient similarity between "Chelsea Chocolate Flavoured Whoppers" and Mr. Malone's previous product name, "The Original Chelsea Cocoa Dusted Chocolate Fudge Whoppers," to conclude infringement. Nevertheless, he ruled against awarding nominal damages in the absence of proven loss.
Lord Sandison also noted that Mr. Malone's undertaking to cease production did not inject proportionality into the confectionary company's litigation strategy, which he described as being "determined to seek a substantial monetary award." The company was also ordered to cover the expenses for Mr. Malone's girlfriend, Debbie Watt, after attempting to sue her despite her limited involvement in his business.
McCandlish Farmhouse Confectionery issued a statement expressing satisfaction that the Court of Session affirmed their trademark was infringed and that an undertaking was secured to prevent future unauthorized use of the name. The company stated the case was about protecting the Chelsea Whopper name and honoring the legacy of its founder, ensuring the brand's future safeguarding.