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Passing Off Notes

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Submitted By dannyhu93
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PASSING OFF – a common law
Definition:
Perry v Truefitt: Lord Langdale: a man is not to sell his own goods under the pretence that they are goods of another man; he cannot be permitted to practice such a deception, nor to use the means which contribute to the end. He cannot therefore to use names, marks, letters or other indicia by which may induces others to believe, the goods are manufacture by another.
Erven Warninch v Townend:
Lord Diplock: 5 characteristics: 1) misrepresentation 2) made by a trader in the course of trade 3) to prospective customers of his or ultimate consumer of goods or services supplied by him 4) which may injure the business or goodwill of another 5) cause actual damage to a business or goodwill of the trade
Lord Fraser; 5 characteristic 1) In England, particular trade name applies 2) Class of goods clearly defined, trade name distinguish from other similar goods 3) Reputation lead to goodwill 4) Claimant must be owner of the goodwill 5) Suffered substantial damage, to his goodwill, because of the falsely described by the trade name of the defendant.
Reckitt & Colman v Borden (Jif lemon): Lord Oliver Classic Trinity: * Claimant has reputation which lead to goodwill, * Defendant made a misrepresentation that is likely to deceive the public, * By inducing confusion, damages REPUTATION :who, trading, where,what Goodwill: definition: IRC v Muller: Lord Macnaghten: Goodwill is the benefit and advantage of the good name, reputation and connection of a business. The attractive force that brings in consumers. Distinguish from an old establish business to a new business. WHO – trader House owner: Day v Brownrigg – House owner could not stop neighbour form calling the house the same name Political party: Kean v McGivan – Not trader because of the party is too small. Who’s commercial trading were limited to hiring of halls for meeting. Distinguish: Burge v Haycock – a lobbying group ‘country alliance’ stop another independent politician from using the work country alliance, because they have establish goodwill. COA states that, the legal status of an entity will no depend on whether it was a charity or political party, rather they had establish goodwill. Charity: British Legion v British Legion Club & British diabetic Association School: Cranford Community College v Cranford College: no goodwill but Judge Hacon states that:

* in principle, although the law of passing off was primarily concerned with goodwill in the business of a trader, it could be relied on to protect goodwill enjoyed by non-traders such state schools, churches and charities TRADING Before, during and after Before: BBC v TALBOT: BBC has already set up advertisement, does it has goodwill for car fax machine, and Talbot lose. ELIDA v Colgate: Justice Goulding held television advertising for new toothpaste gave rise to immediate goodwill. (1984) Cadbury Schweppes v Pub Squash: Pub squash copy the same advertising technique. Failed to claim passing off, because the two goods were easily distinguishable. Lord Scarmen: If the advertising has created an impression in the mind of the public, there is trading and goodwill. Then it will be goodwill, if not, then it won’t be. After: whether public still retain relevant association/ any intention to resume business Goodwill Expire: Norman kark v Odhams: Magazine from today merged with courier. The magazine JUMBO become TODAY. Looking by the factual situation, goodwill has expire. Residual goodwill: Ad-lib Club v Granville: Pub closed on 1966 because of noise problem. New pub could not open because there is still residual goodwill Sutherland v V2 Music ltd: pop group in 90s called liberty. Three hits in 1992, 93, 95. After 1996 the group went silence. Another group formed, liberty 2 in 2001. Court held there is still residual goodwill However: Knight v Beyond; Myth Buster written by Knight in 1996. The goodwill no longer valid in 2013. Intention to continue: Jules Rimet Cup v Football Association: Worldcup Willy was used in 1966. There is still goodwill in Willy, because if England win the world cup again, they might use again. Still associate with consumers. Maslyukov v Diageo: claimant still sells his own whisky to independent bottlers. Justice Arnold allowed the injunction, because there was no intention to abandon the associated goodwill. FOREIGN Evidence of business activity Sheraton v Sheraton Motels: Booking were made frequently from the UK, thru office in London and travel agencies. The defendant has goodwill which would be exposed to risk from confusion between their businesses in different parts of the world. No business activity, but customer Bernadin v Pavillion properties: There is few customer from and advertisement in UK, but there is no trading in UK. Thus, it has no goodwill. (1967) Pete Waterman v CBS UK ltd: a counter claim of passing off were executed by the defendant, the defendant was able to sough injunction based on the fact that, he has significant number of customers from UK to New York, thus establish goodwill. (1993) Anheuser-Busch Inc v budejovicky Budvar: selling beer in US army base doesn’t constitute to trading in UK. Athelete’s Foot v Cobra Sports: Plaintiff plan to grant franchise to UK, but negotiation failed. Defendant registered and advertised the name in magazines. Plaintiff failed because there was no damage that could suffer in UK, because of no customer. Mere reputation Maxim v Dye: Famous restaurant that has no trading in UK, all it has is reputation. Able to execute passing off. Reason that this does not apply in Bernadin case is because in 1977, England had finally acceded to the Treaty of Rome, establishing the European Economic Community that the court moved from hard approach to soft approach. Starbucks v BskyB: Starbucks has satellite broadcast in Hong Kong. But can be view in UK (through website, Youtube). Defendant came out with similar TV show in UK. Held: not trading. *there is no advertisement that specifically in UK, advertisement on Internet is too broad. (from soft approach to hard) (could also be the reason that Hong Kong is not European country, and the number of UK customers might not be significant enough) Well known marks Foreign traders can now rely on Trade Mark Act 94 s56(2) that give effect to Paris Convention Article 6bis: The proprietor of a trade mark which is entitled to protection under Paris Convention or the WTO agreement as a well-known trade mark is entitled to restrain by injunction the use in the UK of a trade mark which might cause confusion. WHERE – goods can be localised Associated Newspapers v Express Newspapers: Able to stop London evening newspaper, because there is goodwill and reputation in London. Levey v Henderson: shop in Newcastle, defendant primary store in midland, the defendant propose to open store in Newcastle. The Injunction only extend to Newcastle. Chelsea man Menswear v Chelsea girl: Able to stop, because there is plan for future expansion. And the goods move around UK. Levey case is the only case reported and only at pre-trial. WHAT Shape and ways Jif lemon: the bottle shape, yellow bottle with triangle green paper on top Edge v Nicholls: Puffin and penguin cake that have similar package design Numatic International v Qualtex: similar vacuum cleaner design] Colour: BP Amoco v john Kelly: Similar colour petrol station, successful Style: My Kinda Town v Soll: defendant left plaintiff restaurant and set up similar style of restaurant and menu. Chicago Pizza Pie Factory and Grunts Chicago Pizza Company. Court held if the plaintiff were to plead passing off on the style rather than the name, he might have held defendant guilty. Words: Office cleaning Services v Westminster Window & General Cleaners: claimant traded as “office cleaning services” vs “Office cleaning association”, court held no because to obtain the word would mean monopoly in such a descriptive title and the different were sufficient to be distinguishable. Burberrys v JC clothing: no one shall be able to claim word or name as it would monopoly the word. Radio Taxicabs v Owner Driver Radio Taxi Services: there was no real risk of confusion amongst members of the trade, the claim in passing off failed. The court was not satisfied that the Defendant had acted with the intention of taking advantage of the Claimant’s name, reputation or goodwill, or of diverting business from it. As such, the claim that the name was an “instrument of fraud” which should be delivered up could not succeed. The own-name defence itself gave rise to three issues: (i) did the use of the signs CIPRIANI and CIPRIANI LONDON constitute use by CGS of its own name? (ii) if not, could CGS rely on the names of the second and third defendants; (iii) if the answer to the first or second question was "yes", was such use to be regarded as being "in accordance with honest practices in industrial or commercial matters"? – Cipriani was not able to rely on own name because the name it use does not represent exactly the same name No own name defence – once there is establish company or once the person has sold the company, no nick name (BIBA), unless: habib bank, one nationalize and one own bank, two groups side by side, acceptable for name defense. Sold funeral business, cant do it again, because sold. Advertising themes Cadbury Schweppes: can, but need to produce image on public mind No common field of activity defence – J Sainsbury v Active Misrepresentation

Misrep can be the source or quality
Reddaway v banham – sold “camel hair belting” same name, quality of goods
Spalding v Gamage – improve ordb football, actually is old one form claimant, source

Express
Primark v Lollypop – jean sold by primark, use by lollypop with different name

Indirect
Asssociated newspaper v Insert madia – put flyer into claimant newspaper, no cosent

Innocent
Bauma v moore- no substantial damage nvm Gillette v edenwest- with substantial damage then must pay

Test. 1. My kinda town v Soll – whether the defendant induced public to confuse source or quality of defendant products with claimant. – confirm by fine & country v Okotoks 2. Moroccanoil Isreal v Aldi Stores – justice Hacon, mere confusion was not enough, it must lead to deception = inducement 3. Neutrogena v Golden Limited – a. Apply Jif Lemon (substantial number of members misled into purchasing defendants products in belief that it is the respondents.) b. Not necessary for that person confused to have a chance to compare both products c. Defendants mark must be operative cause of confusion d. Ordinary member e. Customer to be taken as they are found, how far does the mark resemblance two products as to be calculated to deceive incautious customers f. Confusion is a jury question
Actual evidence, expert (Gucci v Gucci = have to be expert in the area concern) , market survey (Zee Entertainment Enterprises v Zeebox = must be helpful to court, only act as an additional evidence.)

DAMAGE
Loss of existing trade and profit
Where misrep generates confusion about source or origin of goods or services. Occurs where claimant & defendant deal in similar goods or trade in similar fields. Trade diverted from claimant to defendant, so claimant can claim.
Loss of potential trade and pofit
Also occur for future trade and profit. Damage is potential trade lost rather than diversion of existing trade. LRC international v Lilla Edets, same name used, caused confusion and damage, that prevent the claimant move into new field. Lego System v Lego Lemelstrich – Lego for colour garden equipment, prevent them moving in.
Loss of licensing revenue
Similar in lego, defendant conduct undermines claimant ability to own license own mark. Mirage Studios v Counter-Feat Clothing, if not defendant printed image on cloth, it will be claimant license to do so. Stringfellow v McCain – must show that the license is likely to take place (mccain is kids dancing for oven chip in disco way, stringfellow is nightclub, impossible)
Damage to reputation
Misrep will impact on reputation. Harrods v Harrodian School, lord justice Millet, must damage goodwill, not reputation only. Important where goods are not in competition & claimant trades in high quality goods. 1) Inferior goods confusion a. Spalding v Gamage – new improved orb footballs 2) Injurious association b. Annabel’sberkeley Square v Schock – normal club vs strip club both using the same name, annebel. There is passing off
Dilution
New developed area, misrep causes claimant sign to be familiar or commonplace, thus it becomes difficult to associate claimant’s goods with sign. Apply to situation where public is not confuse or reputation is not damage.
Taittinger v Allbev – use of champagne name brought out dilution to what is distinctive
EXTENDED
Bollinger v Costa Brave Wine – may share goodwill's in the same name, grapes from same regional place. Advocates, lord Diplock, not just regional, share reputation in a name. Chocosuisse v Cadburry – same textual
Misrep
Chocosuisse v Cadbury - Only on products, not trader origin
Damage
Diageo v ICB, Justice Arnold, vodka producers can stop vokat.…...

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