C manufactured Jif lemons. D wished to produce lemon juice holders almost identical to those of Jif. C argued that D was passing off. D argued that use of a lemon to hold lemon juice was both common to the trade, and descriptive. Held:
· See notes.
· On facts:
1) Use of plastic lemon not‘descriptive’
Ø Even if the plastic lemon was descriptive, had acquired a secondary meaning
Ø However in any case probably only words can be descriptive
2) Use of plastic lemons not ‘common to the trade’
Ø Plastic lemons were not in general use in UK; Jif was the sole provider
· Thus D was passing off, and could only market plastic lemons if they had sufficient distinguishing features from Jif.