C was manufacturer of Penguin bars. D intended to sell a range called ‘Puffin’ bars, deliberately designed to be as similar as possible to Penguins without incurring liability for passing off. Evidence showed that although customers did not mistake Puffin bars for Penguin bars, many assumed that the two were made by the same manufacturer (although they also did not know who this manufacturer was – McVities). Held:
· See notes.
· On facts, was passing off by D.