A Slush Puppie has long been a favourite for many generations of children on a hot summer’s day. The use of the brand, however, has descended into a trade mark and passing off dispute between J&J Snack Foods and Ralph Peters & Sons, culminating in a worldwide freezing order being granted in relation to up to £10 million of the latter’s assets.

Published 4 March 2025

That order has now been discharged, with the court concluding that J&J Snack Foods had not given fair presentation when obtaining the order. The judgment is a useful reminder of the heavy burden on applicants when applying for such relief. Meanwhile, the litigation continues.

Court: High Court of Justice, Business & Property Courts, Intellectual Property List
Judge: Mr Justice Fancourt
Judgment: Here
Trade mark: [SLUSH PUPPIE]
Issue: Trade Mark Infringement

Background

Parallel proceedings have been ongoing in Ohio, USA since 2019. Around October 2024, J&J Snack Foods commenced proceedings before the English Courts. The claim is unusual in that Ralph Peters & Sons is not alleged to be a primary tortfeasor, but a joint tortfeasor with one of its group companies (unnamed in the litigation), Frozen Brothers.

The commencement of proceedings was followed by a without notice application on 3 December 2024 for, among other things, a worldwide freezing order. This was directed to £10 million of Ralph Peters & Sons’ assets and £10 million of its director and majority shareholder’s assets, including two of his homes. This was granted shortly before Christmas, with the return date listed after Christmas.

On 17 January 2025, Ralph Peters & Sons sought an order discharging, among other things, the freezing order. It argued that the partner at the law firm responsible for J&J Snack Foods’ application had failed to give full and frank disclosure (sometimes referred to as fair presentation).

Full and frank disclosure

The burden on applicants for full and frank disclosure in applications for freezing orders was summarised in  Uconinvest LLC v Jysan Holding LLC  [2024] EWHC 1532 (Ch) as follows:

“Applications for without notice freezing orders, whether domestic or worldwide, are now a routine part of the business of the Chancery Division and the Commercial Court. It is easy therefore to regard them as “normal”, but any hearing where only one side of the case is heard should be regarded as exceptional. Further, freezing orders that are broad in their reach are capable of having very serious consequences for a respondent. The price of obtaining such relief without notice to the respondent is a heavy responsibility to ensure that the matter is fairly presented to the court, not slanted or partial, and that the points that the respondent would wish to make were they present, so far as able to be anticipated, are fairly put before the court for consideration. That is particularly so when serious allegations are made against the absent parties.”

Reasoning

The judge concluded that the freezing order should be discharged. His reasons included, among others, as follows:

• failure of full and frank disclosure: J&J Snack Foods had failed to disclose several key points during the without notice hearing:

  • it did not explain why it was appropriate for the applications to be made without any notice to the Ralph Peters & Sons;
  • it failed to distinguish between the ‘Phase 1’ (the use of SLUSH PUPPIE) and ‘Phase 2’ (the use of SLUSHY JACK) claims, particularly the weakness of the ‘Phase 2’ claim and its impact on the quantum of the claim;
  • it did not provide solid evidence of a serious risk of Ralph Peters & Sons dissipating assets or making itself judgment-proof;
  • it did not address the relevance of the passing of time from 2020 to December 2024 in relation to the risk of dissipation and the need for a without notice hearing;
  • it did not explain the argument that gross profits made by Frozen Brothers was not the proper basis for the quantum of a claim against Ralph Peters & Sons

• lack of real risk of Ralph Peters & Sons making itself judgment-proof: The Judge was not convinced that there was a real risk of the Ralph Peters & Sons taking steps to make itself judgment-proof. J&J Snack Foods did not provide sufficient evidence to justify this risk, especially considering the long-standing litigation in Ohio and Germany without any evidence of Ralph Peters & Sons taking such steps. The dishonesty alleged against Mr Peters did not lie at the heart of J&J Snack Foods’ claim and did not of itself give rise to a strong inference of a risk of dissipation of assets.