An injunction was granted to restrain the labelling of a sparkling fruit (Elderflower Champagne) non-alcoholic drink made in Surrey to include the word ‘champagne’. The trial judge had held that all the necessary ingredients for a successful passing off action had been made out save for proof of likelihood of substantial damage to the plaintiff.
Held: the plaintiff argued that if the defendant continued to call its product ‘Elderflower Champagne’, ‘. . . the effect would be to demolish the distinctiveness the word champagne, and that would inevitably damage the goodwill of the champagne houses.’ Peter Gibson LJ: By parity of reasoning it seems to me no less obvious that erosion of the distinctiveness of the name champagne in this country is a form of damage to the goodwill of the business of the champagne houses.’ and as to CIVC, he said that Sir Robin Cooke ‘thought the [Champagne] case exemplified the principle that a tendency to impair distinctiveness might lead to an inference of damage to goodwill . . .’
‘Like the judge, I do not think the defendants’ product would reduce the first plaintiffs’ sales in any significant and direct way. But that is not, as it seems to me, the end of the matter. The first plaintiffs’ reputation and goodwill in the description Champagne derive not only from the quality of their wine and its glamorous associations, but also from the very singularity and exclusiveness of the description, the absence of any qualifying epithets and imitative descriptions. Any product which is not Champagne but is allowed to describe itself as such must inevitably, in my view, erode the singularity and exclusiveness of the description Champagne and so cause the first plaintiffs damage of an insidious but serious kind. The amount of damage which the defendants’ product would cause would of course depend on the size of the defendants’ operation. That is not negligible now, and it could become much bigger. But I cannot see, despite the defendants’ argument to the contrary, any rational basis upon which, if the defendants’ product were allowed to be marketed under its present description, any other fruit cordial diluted with carbonated water could not be similarly marketed so as to incorporate the description champagne. The damage to the first plaintiffs would then be incalculable but severe.’
Judges:
Peter Gibson LJ
Citations:
Independent 30-Jun-1993, Times 28-Jun-1993, [1993] FSR 641
Jurisdiction:
England and Wales
Cited by:
Cited – Sean Sweeney, Graham Edward Camps v Macmillan Publishers Limited, Danis Rose ChD 22-Nov-2001
The claimants were trustees of the estate of James Joyce, and complained at the publication of unpublished parts of the work Ulysses in a readers edition by the defendants. Published works are protected for fifty years after the author’s death, but . .
Cited – Chocosuisse, Kraft Jacobs Suchard (Schweiz) Ag, Chocoladefabriken Lindt and Sprungli (Schweiz) Ag v Cadbury Limited PatC 29-Oct-1997
The plaintiffs brought actions in passing off against the defendant company in respect of their chocolate products. They objected to the use of the terms ‘Swiss Chocolate’ applied to chocolates not made in Switzerland.
Held: The claimant had . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Litigation Practice
Updated: 26 October 2022; Ref: scu.89691