L'Oréal SA v Bellure NV [2007] EWCA Civ 968

• Claimant, L’Oreal, manufactured high quality perfumes. Defendant imported ‘smell-a-likes’ marketed with very similar names and packaging to that of Claimant’s perfumes. 

  1. Claimant alleged Defendant was guilty of passing off, as the smell-a-likes were ‘instruments of deception’ that could be falsely sold by vendors as L’Oreal’s perfume. 

  2. Alternatively, Claimant claimed there should be tort of “unfair competition” in English law which requires no misrepresentation.

Held - Instruments of Deception

• Goods only constitute ‘instruments of deception’ for purposes of passing off if they themselves make a false representation.

  • I.e. goods themselves must be so inherently deceptive that their existence on market place alone constitutes passing off.

  • E.g. by reason of name or packaging.

• Thus fact that a third party may use a good to commit passing off does not make creator of good liable for passing off. 

• On facts, goods sold by Defendant were not instruments of deception.