Lever v Goodwin: CA 1887

In trade mark and patent cases the plaintiff was entitled, if he succeeded in getting an injunction, to take either of two forms of relief: he might claim from the defendant either the damage he had sustained from the defendant’s wrongful act or the profit made by the defendant from the defendant’s wrongful act.
Chitty J described a class of case where relief was approriate in a passing off case: ‘In the second class of cases which I am considering, the trade is not deceived. I am speaking from my large experience in these matters. The retail buyers know from whom they are buying, and, if there is anything like a fraudulent device, such as I am referring to, they are not taken in, they are not deceived. But what is done by the manufacturer is this – he puts an instrument of fraud into their hands. It has been said more than once in this case, in substance, that the manufacturer ought not to be held liable for the fraud of the ultimate seller, that is, the shop-keeper, or the shop-keeper’s assistant. But that is not the right view of the case. Have the Defendants in this case, or not, knowingly put into the hands of the shopman, who is more or less scrupulous or unscrupulous, the means of deceiving the ultimate purchaser? That is the question which I have to try, and that is a question of fact, and nothing else.’

Judges:

Cotton LJ, Chitty J

Citations:

(1887) 36 Ch D 1, (1887) 4 RPC 492

Jurisdiction:

England and Wales

Citing:

FollowedEdelsten v Edelsten ChD 28-Jan-1863
The plaintiff sought an injunction and damages for infringement by the defendant of his trade mark.
Held: The infringement was innocent. The plaintiff was entitled to an injunction, but for damages only after the defendant had become aware of . .

Cited by:

CitedHM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
CitedBritish Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Damages

Updated: 27 April 2022; Ref: scu.180888