Flashcards
Passing Off Case Law
Cards in this deck (16)
- 1Passing Off - Perry v Truefit"A man cannot sell his own goods under the pretence that they are the goods of another man."
- 2Requirements for passing off - Reckitt and Colman v Borden [1990]Lord Oliver endorsed the statement of Lord Diplock down to three essential elements for an action of passing off;
1. goodwill
2. misrepresentation
3. Damage - 3Reckitt and Colman v Borden [1990]Lemon Jif case - Un-registered mark affirmed a permanent injunction preventing Borden from marketing a lemon-shaped container to sell lemon juice. Public identified the natural plastic lemon container with the Jif brand of lemon juice. - Misrep of similar packaging
- 4Goodwill - IRC V Muller Co and Margarine [1901]"Goodwill is the attractive force which brings custom." "Goodwill is whatever adds value to the business by way of name, reputation of situation."
- 5Significance of goodwill and reputation - Harrods v Harrodian School [1996]C -proprietor of Harrods Store. D -School
Despite there being no common field of activity C claimed passing off.
Held - dismissed the public only associated the traders rep within a limited field of activity. Thus the use of Harrods name did not trespass the claimants goodwill. - 6False endorsement - Irvine v Talksport [2002]D operated a radio station formally known as 'Talksport'. The D legally obtained a photo of the C however doctored up the MB Phone replacing it with the word 'TalkSport' -
Issue - Had D presented a false message that C had endorsed in the radio station?![False endorsement - Irvine v Talksport [2002]](https://examtimeassets.s3.amazonaws.com/uploads/flash_card/image_question/3153967/desktop_28b6b0fd-5676-4565-bf28-8ba54ceaba32.png)
- 7False endorsement - Irvine v Talksport [2002] What was held?Held - false message of endorsement. The case demonstrated that PO would be extended were a person had a substantial reputation/goodwill.
Laddie LJ - "law of PO is now greater width than applied before" - more misappropriation - UC![False endorsement - Irvine v Talksport [2002] What was held?](https://examtimeassets.s3.amazonaws.com/uploads/flash_card/image_question/3154230/desktop_3ee02727-475e-4674-82e4-23d4bebdc393.png)
- 8Dilution of Goodwill -Tattinger et all v Allbey et all [1993]Facts; Plaintiff's were producers of champagne sued in a passing off actions for damages & an injunction to restrain the D from using the word 'champagne' in relation to Elderflower Champagne.
![Dilution of Goodwill -Tattinger et all v Allbey et all [1993]](https://examtimeassets.s3.amazonaws.com/uploads/flash_card/image_question/3154257/desktop_1be789cf-9a89-4d0e-bce4-d02169dac2c8.png)
- 9Tattinger et al v Allbey Ltd [1993] - Proving the requirements for passing off1. The GW in the distinctive name champagne would be eroded with serious consequences for the champagne houses.
2. The was a misrepresentation that the D'd products was a champagne or some way associated with it.
3. Damage would depend on the size of D's operation. - 10Tattinger et al v Allbey Ltd [1993] SummaryThe use of the word champagne to describe a non-alcoholic drink which was neither Cham nor associated with it would erode the goodwill in the distinctive name Cham - damaging the business of the plaintiff. injunction granted.
- 11Tattinger et al v Allbey Ltd [1993] - Unfair competitionRecognised dilution as a form of GW. Although note that the average consumer was not likely to be mislead when they bought D's EFC, if they thought they were buying the real think it would damage the P goodwill.
- 12Neutrogena v Golden Ltd [1996]Set out the principles for confusion;
1. substantial number of customers must be mislead.
2. The person confused doesn't need to compare P & D's goods.
3. D's marks must be the operative of confusion. - 13Spalding v Gamage Stated the most common forms of misrep
1. Where D represents that his goods and services are those of the claimants
2. D represents that C’s goods are of a particular type.
3. D represents that the businesses of D and C are affliated with each other. - 14Bristol Conservatories v Conservatories Custom Built [1989] PART ONESalesmen for the D company allegedly showed prospective customers pictures of the claimant’s cons as if they were samples of the defendant’s products. COA held that those facts would, if proved, be capable of amounting to passing off.
- 15Bristol Conservatories v Conservatories Custom Built [1989]The thrust of the representation was that if the customers purchased from the salesmen, they would be getting the conservatory which had been designed and made by the people who had earned the goodwill in the products shown in the photographs.
- 16Lucas film Ltd v Ainsworth [2009]Showed how the courts had gone back to being restrictive with regards to reverse passing off. There was no misrepresentation established.
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- Flashcards on Passing Off Case Law, created by jade-glasgow on 21/04/2015.
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