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PASSING OFF IP RIGHTS AVAILABLE STEP 1: INTRODUCTION To establish a cause of action for passing off, three elements must be established, as per Consorzio del Prosciutto di Parma v Marks and Spencer plc/Reckitt & Coleman v Borden:
1. That there is goodwill or reputation attached to the goods or services which he supplies.
2. Demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that the goods/services offered by him are those of the claimant.
3. Demonstrate that he suffered (or is likely to suffer) damage by reason of the erroneous belief caused by defendant's misrepresentation. WHY RIGHTS AVAILABLE STEP 2: ESTABLISHING GOODWILL Lord Macnaghten IRC v Muller & Co's Magazine 1901 - "Very easy to describe but difficult to define. It is the benefit of the good name, rep and connection of a business. It is the attractive force which brings in custom" Goodwill means business reputation:
? Must be among customers or prospective customers
? Must be in relation to some distinguishing feature
? C must show the customers associate the goods/services with C and also that the customers understand the distinguishing feature as an indication or sign that the goods/services come from C Proving goodwill:
? Healthy accounts - if business doing well then likely to have goodwill.
? Number/diversity of customers - the more customers and diverse their background = well known
? Length of trading history = more likely to be well known
? Advertising expenditure
? Geographical spread of goodwill
? Evidence from customers Sources used to prove goodwill:
? Sales figures
? Expenditure on advertising (using distinguishing feature in question)
? Witness evidence
? Survey evidence
? Focus groups (which product would you prefer?) Types of distinguishing feature:
? Logo, shape, colour or style of packing, get up,
? A name (e.g. Neutrogena Corp v Golden ltd: Neutralia sufficiently similar to Neutrogena to constitute passing off)
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