An Ayrshire sweets trader has avoided a potential £1.1 million damages bill after a Court of Session judge dismissed claims brought over the Chelsea Whopper confectionery name.
Wee Troon Candy, which is run by Michael Malone, was sued by Helensburgh firm McCandlish Farmhouse Confectionery, now trading as Mr Mac Sweets. The dispute concerned the cocoa-dusted, fudge-like sweet, which the source says is believed to date from the post-war era.
What the court case was about
McCandlish claimed that its late founder, Allan McCandlish, acquired the recipe and associated rights in 1994. The family business alleged that Wee Troon Candy had infringed its trademark and passed off its own product as the McCandlish sweet.
The company sought £1.1 million in damages. That figure included £700,000 for lost profits, £280,000 for brand dilution and reputational harm, and £120,000 for rebranding and market education.
Lord Sandison found that Mr Malone’s former use of the Chelsea Whoppers name infringed one McCandlish trademark, but dismissed the claim for damages. The judge said the pursuers had not proved the case they had set out.
The pursuers at proof fell well short of making out their pleaded case.
The ruling also highlighted concerns about relying on artificial intelligence in legal proceedings. Lord Sandison described parts of the pursuers’ evidence as “abstract and generic content produced by artificial digital means” and said the case had been shaped by AI-generated material rather than demonstrable facts.
Earlier Ayr case and change of packaging
The disagreement followed a 2009 case in Ayr Sheriff Court, when Allan McCandlish sought to stop Mr Malone producing and selling Chelsea Whoppers. That case was dismissed because it lacked detail.
Mr Malone told the court he had been making the sweets since 2002. He argued that the earlier Ayr case allowed him to continue producing them, described the name as generic and said he had sold 3,303 boxes over five years for a total profit of £12,122.
During the recent proceedings, McCandlish director Agnes Gough, the founder’s daughter, visited 20 confectionery shops across Helensburgh, Dumbarton, Cardross and Glasgow. She found eight selling the McCandlish product and bought more stock from Vanilla in Helensburgh in late May.
Mr Malone subsequently changed his packaging to a brown-paper design under the name The Wee Copper Pot, using the words “Luxury Chelsea Whopper”. On May 1, he agreed to stop making, marketing or selling confectionery using the words Chelsea or Whopper.
Claims dismissed and legal costs
The judge found that the trademark Chelsea Chocolate Flavoured Whoppers had been infringed until Mr Malone gave that undertaking. However, McCandlish provided no independent evidence of customer confusion, goodwill or financial loss. A promised survey was not produced, and no expert evidence supported the damages claim.
All of these claims existed in the AI realm only.
The court dismissed further claims involving passing off, brand dilution, reputational damage, rebranding costs and lost sales.
Debbie Watt, who was named as a second defendant, was found to have had no involvement in the confectionery business beyond creating a basic Facebook page for Wee Troon Candy. The claims against her were dismissed, and McCandlish Farmhouse Confectionery was ordered to pay her legal expenses. No expenses were awarded between McCandlish and Mr Malone.
McCandlish said the case had been about protecting the Chelsea Whopper name built by its late founder. The company said the court had confirmed infringement of its registered trademark and that it held an undertaking preventing the name’s future use without permission.
