The appellant enjoyed a reputation as a cartoonist under the pseudonym ‘Kem’. The defendant published the work of another cartoonist with the pseudonym ‘Kim’ but without the dot over the ‘i’. The claimant claimed in passing off.
Held: ‘Is it ‘Kim’ or ‘Kem’? That is the question. With great respect to those who have thought otherwise, I do not see how it is possible to form a confident opinion one way or the other. For inevitably I approach the question, knowing that there is a question, whereas the real test is what impression would be made upon the citizen, who, finding his ‘Daily Sketch’ on his breakfast table or buying it at a bookstall, opens it and sees a cartoon bearing this signature.’ and ‘In these circumstances I could not avoid the conclusion, even if the Appellant had called no evidence of confusion, that the Respondents were taking a course which was in the highest degree likely to lead to confusion. But in fact the Appellant called witnesses of candour and good reputation who had seen the offending cartoons and had been misled, partly no doubt by the character of the cartoons, but also by the signature, into the belief that they were the works of the Appellant. Here then was a clear case of confusion arising from the fact that Mr Price had so signed his pseudonym of ‘Kim’ and the Respondents had published his signature, that his work had been wrongly attributed to ‘Kem’. What more is required to entitle the Appellant to the relief that he claims? Upon the evidence I would only make two further observations. First, where it appears to the eye of the court that there is likely to be deception, and there is evidence of rational men that they have been deceived there is little value in the evidence of witnesses who say they have not been deceived. Secondly, there is a suggestion in the judgment of at least Somervell LJ (it may be per incuriam), that the evidence of witnesses, who, knowing ‘Kem’ but not ‘Kim’. were deceived, does not advance matters much. But in a passing-off action the persons whose evidence is most cogent are those who, because they know only the plaintiff’s goods are the more easily deceived by the similarity of the defendant’s goods and it is from just that deception that the plaintiff is entitled to be protected.’
Judges:
Lord Simonds
Citations:
[1948] 65 RPC 242
Jurisdiction:
England and Wales
Cited by:
Cited – Alan Kenneth McKenzie Clark v Associated Newspapers Ltd PatC 21-Jan-1998
The claimant was a member of Parliament and an author. The defendant published a column which was said to give the impression that the claimant had written it. It was a parody. The claim was in passing off.
Held: The first issue was whether a . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 06 May 2022; Ref: scu.214638