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Evidence of confusion
Without proof of confusion, a passing-off case cannot be successful. Confusion among customers is a factual issue, and the result of a passing-off claim is never easy to foresee. Although it is hard to generalize about what will cause uncertainty, the confusion needs to be about the trading source. Survey evidence (i.e., a survey of a sample of the public is taken, usually by marketing analysts) or witness evidence (ideally from people employed in the relevant sector) are the two most common types of evidence. They essentially turn into knowledgeable witnesses on the likelihood of confusion. The claimant bears a hefty load that is frequently challenging to overcome.
In Julius Sämaan v. Tetrosyl Ltd. (see 19.8.2), despite blatant trademark violation, a passing-off claim was dismissed for lack of proof of confusion. Survey evidence is commonly given, but the courts are not convinced by it. In most cases, presenting the two products to the judge will be decisive. Do they believe that consumers will probably be perplexed? They are more likely to accept the poll results if they concur. They are likely to reject it if they don't. If either the claimant or the defendant has made a clear distinction between their products, there may not be any confusion even though the defendant may use the claimant's distinguishing feature in some capacity. A long-standing dealer of unofficial Arsenal club memorabilia was deemed not to have confused clients by utilizing the club's name and logo in Arsenal Football Club plc v. Reed [2001] RPC 922 (not least due to a prominent disclaimer). The attempt at passing off was unsuccessful (see to the trade mark case at 19.9). It won't be sufficient for passing off if consumers only recognize the look-alike as a less expensive replica of the branded product.
That way, the trading source of the goods or services is clear. A certain amount of leeway is allowed for the conditions in which the buyer will examine and select whether or not to purchase the stuff. Making a snap decision from a shelf is not the same as carefully considering the issue over several days. A more knowledgeable client would need to be confused rather than "a moron in a hurry" in order for there to be a chance of confusion (Morning Star v. Express Newspapers [1979] FSR 113). The next time you're in the grocery store, try to find instances where the "own brand" version of a product is designed to resemble a well-known household brand. Think about whether you are truly puzzled about the product's origin (but just take a quick look at the shelf; the important thing to remember is that the court understands that consumers don't look closely at the products, trying to find the differences).
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