C, L’Oreal, manufactured high quality perfumes. D imported ‘smell-a-likes’ marketed with very similar names and packaging to that of C’s perfumes.
1) C alleged D 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, C claimed there should be tort of “unfair competition” in English law which requires no misrepresentation.
Instruments of Deception
· Goods only constitute ‘instruments of deception’ for purposes of passing off if they themselves make a false representation.
Ø i.e. goods themselves must be so inherently deceptive that their existence on market place alone constitutes passing off.
Ø e.g. by reason of name or packaging.
· Thus fact that a third party may use a good to commit passing offdoes not make creator of good liable for passing off.
· On facts, goods sold by D were not instruments of deception.