In a previous article our passing offpassing off: a civil wrong, or tort, that protects a trader... More solicitors looked at the “classic” passing offpassing off: a civil wrong, or tort, that protects a trader... More claim, which involves a three part test a claimant must satisfy in order to make a successful claim. Case law over the years has expanded and enhanced upon the concept of “classic” passing offpassing off: a civil wrong, or tort, that protects a trader... More and in this article we look at those developments in further detail by focussing on what is often referred to as “extended passing offextended passing off: a claim for passing off brought by a g... More”.
Extended passing offextended passing off: a claim for passing off brought by a g... More
The concept of an extended form of passing offpassing off: a civil wrong, or tort, that protects a trader... More developed in response to claims being brought where a number of stakeholders sought to protect the collective goodwillgoodwill: a business’ intangible and reputational assets s... More in their products. While “classic” passing offpassing off: a civil wrong, or tort, that protects a trader... More requires three elements to be proven, claimants seeking to prove a claim of extended passing offextended passing off: a claim for passing off brought by a g... More must address five. The five elements claimants must prove, as articulated by Lord Diplock in the Advocaat case, are:
- A misrepresentationmisrepresentation: in contract disputes, a false statement t... More has been made;
- The misrepresentationmisrepresentation: in contract disputes, a false statement t... More was made by a trader in the course of trade;
- The misrepresentationmisrepresentation: in contract disputes, a false statement t... More was made to customers (actual or prospective);
- The conduct was intended to injure or harm the goodwillgoodwill: a business’ intangible and reputational assets s... More or business of a competitor;
- The claimant’s goodwillgoodwill: a business’ intangible and reputational assets s... More or business was actually harmed by the trader’s conduct.
Unlike classic passing offpassing off: a civil wrong, or tort, that protects a trader... More, extended passing offextended passing off: a claim for passing off brought by a g... More claims require a claimant to prove that their brand is a clearly defined product, distinct from anything similar. A familiar example is the “Bollinger” case, (J Bollinger SA v Costa Brava Wine Co Ltd [1960] Ch 262), where the Court restrained a product from being sold as “Spanish champagne”. The action was brought by Champagne manufacturers to protect their product from competing products that had not been manufactured in the Champagne region. The principle of “collective goodwillgoodwill: a business’ intangible and reputational assets s... More” flowed from this case and is now an important part for any claim made for extended passing offextended passing off: a claim for passing off brought by a g... More. From Bollinger, the Court now considers any group of traders who produce a product under a particular mark as having a collective interest in protecting the goodwillgoodwill: a business’ intangible and reputational assets s... More associated with that product.
While extended passing offextended passing off: a claim for passing off brought by a g... More claims may only apply to a select group, the development of extended passing offextended passing off: a claim for passing off brought by a g... More shows how common law has been influenced by the types of claims considered by the courts. Understanding the difference between the types of passing offpassing off: a civil wrong, or tort, that protects a trader... More is critical in being familiar with the rights that you have arising from your interests in a product or business and ensuring that those rights are asserted accurately and successfully.
We hope that you found this article helpful. You can contact us and speak to an expertly qualified passing offpassing off: a civil wrong, or tort, that protects a trader... More solicitor or IP lawyer on a confidential basis if you need assistance.