Wilberforce, J described the basis of a passing off action in respect of the name of a newspaper or magazine as being a proprietary right not so much in the name itself but in the goodwill established through the use of the name in connection with the plaintiff’s publication. Referring to what the plaintiff must prove, he added: ‘The plaintiff must show that the name has become distinctive of his goods, and that a reputation has attached to them under the name in question, and that use by the defendant of the name is likely to cause confusion resulting in damage to the goodwill of the plaintiff.’ and ‘As a subsidiary point it is enough to show that a substantial number of persons likely to become purchasers of the goods are liable to be deceived by the defendant’s use of the name. On the one hand, it is not necessary to show that all, or substantially all, persons in the market associate the name of the plaintiff’s goods, if this can be shown of a substantial proportion of person who are probable purchasers of the goods of the kind in question.’
Judges:
Wilberforce J
Citations:
[1962] RPC 163, [1962] 1 All ER 636, [1962] 1 WLR 380
Jurisdiction:
England and Wales
Cited by:
Cited – Cadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd PC 13-Oct-1980
(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 29 April 2022; Ref: scu.182305