United Biscuits V Claimant Analysis

was not sufficient’

Embedded also in the tort of passing off is the need to establish that the goodwill in one’s trade had been misrepresented as that of another trader. Misrepresentation it is said ‘need not be intentional for a passing off action to succeed, and innocence of misrepresentation is no defence.’ The misrepresentation of goodwill therefore could touch on ‘the origin of the goods, their quality, or even the way they are made.’ The misrepresentation ought to be actionable or material. It is of the essence that a consumer is deceived due to such a misrepresentation. The defendant in misrepresenting his goods or services as those of the claimant deceives the consumer. The end result is that the claimant is taken in by such misrepresentation

The general colours and wrapping material were also similar to United’s designs. The Claimant was successful in a passing off action against the defendant for trading in chocolate biscuits with the name Puffin in very similar packaging to the Claimant who sold biscuits under the name Penguin. However in a similar case of Mars UK Ltd v Burgess Group Plc the ‘deliberate referencing of the market leader by a new entrant (even including a pastiche of the market leader’s famous promotional slogan) was not passing off but mere

In reality the tort of passing off seems to be chartering a course where the three elements that make up the classic trinity i.e. goodwill, misrepresentation and damage or the likelihood of same *have been stretched in their application by the courts. It is no longer merely concerned with the Claimant and the misrepresentation of source but is now occupied with the consumer and product misrepresentation even in terms of ‘the quality of the plaintiff’s goods, as to the (non-existing) connection between the defendant and the plaintiff’s goods or business…’

*In its classic form or application all three elements need to be present to give the tort its character of passing off. As such there has to be the referencing of the claimant’s goodwill in the defendant’s trade whereby consumers are misinformed leading to the likelihood of damage or damage. But a consideration of case law reveals a trend which shows the tort has been of a varied nature with the courts extending its reach beyond the classic trinity. This has left its scope or boundaries unclear. From its classical expression ‘of protecting a trader’s goodwill from misappropriation only where that misappropriation is effected by means of a misrepresentation’ there are calls for its development into a broad tort that deals with misappropriation of valuable