Passing Off Flashcards
Polycell Products v O’Carrol
Budd J held the purpose of the tort is because a person who passes off acquires to some extent, the benefit of the business reputation of his rival trader and gets the advantage of advertising
O’Neills v O’Neills Footwear
how this is done is immaterial as long as the similarity is calculated to deceive
Inland Revenue Commissioner v Muller
goodwill is the benefit and advantage of the hood name, reputation and connection of a business. It is the attractive force which brings in custom
Box Television v Box Magazine
action failed, competitor was using the term ‘box’ to refer to televisions, P had not built up enough goodwill to establish sufficient connection with their TV music channel
Budweiser case
Budweiser had been produced as a brand name in US since 19th century, D produced similar beer in Czechoslovakia & mainland Europe with similar name, D imported product to UK, P argued they had built good will in the UK even though their product was not sold in UK, court rejected this and held Budweiser had no trading existence in the UK and as such could not have built up goodwill
C&A Modes v C&A Modes Waterford
P was department store in UK, D opened store in Ireland, Hnechy J took a wider view than Bud that the guiding criteria is whether the name of P’s business is known to the public in the area in which D seeks to carry on his business, goodwill does not stop at the frontier
McCambridge v Brennan Bakeries
SC held the critical point is whether the presentation or packaging of the product leads, or is likely to lead the public to believe that another manufacturer made the product in question
Jacob v United Biscuits
proving confusion is done by assessing the first impression rather than later opportunities in which the customer may have noticed they picked up the wrong product
Tattinger v Albrev
held selling of carbonated beverage under the name elderflower champagne in a thick bottle with a mushroom cork risked confusion with the French sparkling alcohol from the Champagne region
Allergen v Ocean Healthcare
P produced botox, D produced anti-wrinkle cream Botonia, held that the overall get-up was likely to cause confusion/mislead the public to believe there is some connection to P, this has the effect of D to piggy-back on the goodwill
Jiff Lemon case
P marketed product in lemon shaped container for years, court satisfied D had goodwill in packaging and granted injunction preventing D form marketing their lemon juice in a similar container
Adidas case
Adidas brought action against O’Neills which had passed off the 3 stripes logo, held O’Neills was well established in Ireland and had sufficiently distinguished its products such that there could be no confusion
Fenty v Arcadia
involved use of photo of Rihanna w/o her consent, successful in her claim that the top represented that she endorsed the product
