This case has been popularised as the ADVOCAAT case. It was this case in which the concept of passing off was identified.
In Erven Warnink B. V. v. J. Townend & Sons, there were two companies; the first company (Warnink) was from Netherlands and it was into production of a beverage which was the resultant of yolk eggs and brandewijn spirit and it was named as ADVOCAAT. The second company (Townend), which were the defendants was an English company and it was into the production of a drink which had almost an identical name. It was named as OLD ENGLISH ADVOCAAT. But if we consider the nature of the two drinks, it was totally different as the second drink was made from yolk eggs and was strengthened with wine. As the defendants product was made …show more content…
It was considered a product of good quality. However as the defendants product was made up of wine, the defendants must use the name ADVOCAAT while selling their product. The defendants were found ashamed of the tort of passing off.
It was this case in which the concept of “extended” tort of passing off was came into being. Lord Diplock explained it in a very simple language. According to him, when a person represents his product in such a way that the reputation or the goodwill of the aggreived party’s product is injured. According to Lord Diplock , the first element involved in this tort is mispresentation by a merchant dealer in the process of trading. The permanent or the prospective customers of the aggreived party are misrepresented in such a way that the reputation or the goodwill of their business is negatively affected or …show more content…
Whirlpool, Whirlpool sued Indian trader for using W mark on washing machines. Plaintiff’s products were not freely available in India and were only sold to American diplomats. It was held that there was passing off as the plaintiff had acquired spill-over reputation. A clear evidence showing Ads in international magazines available in India was accepted. In McCulloch v. May, the court held that for the tort of passing off, an essential element is that there must exist a “common field of activity”. In Lego v Lemelstrich, it was found that even though the closeness in the fields of activity is of much relevance but its not mandatory. In this case, passing off was found because of the confusion which cropped up among the public regarding the product even though there wasn’t any proximity in the fields of activities. In Laxmikant v. Chetanbhagat Shah, the tort of passing off is explained beautifully. First of all, it is not necessary that there should be an actual damage, the likelihood of it will prove the tort. Secondly, the misrepresentation must result in the loss of goodwill earned by the aggrieved party. Lastly, the party loses its control over its standing in the
In Erven Warnink B. V. v. J. Townend & Sons, there were two companies; the first company (Warnink) was from Netherlands and it was into production of a beverage which was the resultant of yolk eggs and brandewijn spirit and it was named as ADVOCAAT. The second company (Townend), which were the defendants was an English company and it was into the production of a drink which had almost an identical name. It was named as OLD ENGLISH ADVOCAAT. But if we consider the nature of the two drinks, it was totally different as the second drink was made from yolk eggs and was strengthened with wine. As the defendants product was made …show more content…
It was considered a product of good quality. However as the defendants product was made up of wine, the defendants must use the name ADVOCAAT while selling their product. The defendants were found ashamed of the tort of passing off.
It was this case in which the concept of “extended” tort of passing off was came into being. Lord Diplock explained it in a very simple language. According to him, when a person represents his product in such a way that the reputation or the goodwill of the aggreived party’s product is injured. According to Lord Diplock , the first element involved in this tort is mispresentation by a merchant dealer in the process of trading. The permanent or the prospective customers of the aggreived party are misrepresented in such a way that the reputation or the goodwill of their business is negatively affected or …show more content…
Whirlpool, Whirlpool sued Indian trader for using W mark on washing machines. Plaintiff’s products were not freely available in India and were only sold to American diplomats. It was held that there was passing off as the plaintiff had acquired spill-over reputation. A clear evidence showing Ads in international magazines available in India was accepted. In McCulloch v. May, the court held that for the tort of passing off, an essential element is that there must exist a “common field of activity”. In Lego v Lemelstrich, it was found that even though the closeness in the fields of activity is of much relevance but its not mandatory. In this case, passing off was found because of the confusion which cropped up among the public regarding the product even though there wasn’t any proximity in the fields of activities. In Laxmikant v. Chetanbhagat Shah, the tort of passing off is explained beautifully. First of all, it is not necessary that there should be an actual damage, the likelihood of it will prove the tort. Secondly, the misrepresentation must result in the loss of goodwill earned by the aggrieved party. Lastly, the party loses its control over its standing in the