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Evidence of Confusion in Passing Off

The case of Mont Blanc Simplo GmbH v Sepia Products Inc Times 2 Feb 2000, illustrates the elements necessary to establish the tort of passing off, and paves the way, perhaps, for some possibly cheaper IP litigation.

Passing off is a Tort, a legal wrong. If one company establishes an identity which attracts people to its products, another company should not, by dressing up its own products to cause confusion, trade on the first company's reputation. It must not pass off its goods or services as those of another.

The essential elements of the tort are:-

  1. that he had acquired a reputation or goodwill connected with the goods or services he supplied in the mind of the buyers and such goods or services were known to the buyers by some distinctive get-up or feature.
  2. that the defendant had, whether or not intentionally, made misrepresentations to the public leading them to believe that the defendants' goods or services were the claimants: and
  3. that the claimant had suffered or was likely to suffer damage because of the erroneous belief engendered by the defendant's misrepresentation

Such cases are notoriously difficult and expensive, because to some extent of the need for the claimant to establish that confusion had been caused. This has led to extraordinary complexity and expense in carrying out surveys of consumers to establish confusion.

This case decided that the judge will usually be able, himself, to assess whether and to what extent there may have been confusion engendered in the minds of potential customers. He will examine the case in the light of his own knowledge and understanding of the world. Accordingly, there will not always be a necessity for claimants to bring forward evidence of actual confusion in the minds of the public.

This sounds like a great leap forward, but it leaves an awful lot of discretion in the judge, and issues may well arise, where the market place in which the allegation arises is specialised, and quite outside the experience of the judge.

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18 October 2013 http://www.swarb.co.uk/lawb/ipPassingOffEvid.shtml 198 18 October 2013