Penguin plans to push Puffin out of pounds 35m pecking order

It is apparently a trait of British food company marketing executives that when they look upon a white- chested seabird they immediately think: "chocolate biscuit".

A High Court judge listened yesterday as lawyers representing the Asda supermarket chain argued that its range of Puffin chocolate biscuits was not a copy of the 60-year-old Penguin brand. United Biscuits, which sells pounds 35m worth of Penguins a year, is suing Asda for alleged trademark infringement and "passing off".

To even the most junior bird- fancier there would be little difficulty in telling the two creatures apart.

Penguins are flightless spheniscidae, which propel themselves through water with their wings and nest on the ground in the Southern Hemisphere. Puffins, by contrast, are alcidae, strong flyers which nest in cliffs in the Northern Hemisphere.

But lawyers for UB do not believe that ornithology is a popular pastime within the ranks of the chocolate biscuit-buying public. They argued yesterday that the existence of the two brands would cause great confusion. A succession of Liverpool shoppers testified that they had thought Puffins were made by the same company as Penguins. One, Pauline Bennett, explained that they were water birds beginning with "p" and ending with "n".

"What about a pigeon?" challenged Gordon Pollock, Asda's QC.

"They wouldn't hang around water," Ms Bennett told the court.

UB's counsel, Michael Bloch, said there was "no inherent connection" between seabirds and chocolate biscuits which could excuse the copying. The only connection was with UB's particular distinctive product.

Asda had even adapted UB's slogan by urging consumers to "pick up a Puffin", complained Mr Bloch at the start of a 10-day hearing.

Asda insisted the names and the depiction of the bird character were very different. It contended that any similarities would be recognised by the public as simply a humorous reference by Asda to the famous Penguin and therefore would cause no confusion.

The court heard that packaging designers had been asked by the supermarket chain to come up with a brand-beater to rival the Penguin.

While they considered the suitability of a variety of birds as the symbol of the new biscuit, "P-pick up a guillemot" does not have appear to have even made it to the drawing-board.