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Introduction to Passing Off
Lord Oliver's Reckitt & Colman ruling in the House of Lords is cited in Consorzio del Prosciutto di Parma v. Marks & Spencer plc [1991] RPC 351 as a solid exposition of the ingredients of passing off. It can also be stated in terms of the factors that must be proven by the plaintiff in order for the case to be successful. There are a total of three of them. First, the plaintiff must prove that consumers associate the plaintiff's goods and services favorably with the plaintiff's identifying get-up (whether it consists simply of a brand name or trade description, or the individual features of labeling or packaging) and that this get-up is widely recognized by consumers as distinctive of the plaintiff's goods and services. Second, he must show that the defendant intentionally misrepresented some fact to the public, and that this misrepresentation caused or was likely to cause the public to mistake the plaintiff's goods or services for his own... Third, he must show that he has suffered or is likely to suffer damage because of the defendant's false representation that the source of the defendant's goods or services is the same as the source of the plaintiff's goods or services. (Italics mine)
Lord Oliver's Reckitt & Colman ruling in the House of Lords is cited in Consorzio del Prosciutto di Parma v. Marks & Spencer plc [1991] RPC 351 as a solid exposition of the ingredients of passing off. It can also be stated in terms of the factors that must be proven by the plaintiff in order for the case to be successful. There are a total of three of them. First, the plaintiff must prove that consumers associate the plaintiff's goods and services favorably with the plaintiff's identifying get-up (whether it consists simply of a brand name or trade description, or the individual features of labeling or packaging) and that this get-up is widely recognized by consumers as distinctive of the plaintiff's goods and services. Second, he must show that the defendant intentionally misrepresented some fact to the public, and that this misrepresentation caused or was likely to cause the public to mistake the plaintiff's goods or services for his own... Third, he must show that he has suffered or is likely to suffer damage because of the defendant's false representation that the source of the defendant's goods or services is the same as the source of the plaintiff's goods or services. (Italics mine)
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