Erven warnink bv vj



Keywords: erven warnink bv vj
Description: Erven Warnink Besloten Vennootschap -v- J Townend & Sons (Hull) Limited (‘Advocaat’); HL 1979 References: 1A IPR 666, [1979] FSR 397, [1979] AC 731, [1980] RPC 31, [1979] 3 WLR

Erven Warnink Besloten Vennootschap -v- J Townend & Sons (Hull) Limited (‘Advocaat’); HL 1979

References: 1A IPR 666, [1979] FSR 397, [1979] AC 731, [1980] RPC 31, [1979] 3 WLR 68, [1979] 2 All ER 927

The trademark was the name of a spirit-based product called ADVOCAAT. The said product had gained a reputation and goodwill for that name in the English market and the defendants were seeking to take advantage of that name by misrepresenting that their wine-based product was of the same type as ADVOCAAT. The court considered the law on comparative advertising as prohibited by the law against passing off in its extended form where the goodwill is alleged to reside in a class of producers of a product sharing a common name or get up.

Held: Whether the name denoted a product made from ingredients from a particular locality or whether the goodwill in the name was the result of the product being made from particular ingredients regardless of their provenance, since it was the reputation that the product itself had gained in the market by reason of its recognisable and distinctive qualities which had generated the relevant goodwill. In The remedy is intended to prevent unfair trading practices.

Lord Diplock said: ‘in an economic system which has relied on competition to keep down prices and to improve products there may be practical reasons why it should have been the policy of the common law not to run the risk of hampering competition by providing civil remedies to everyone competing in the market who has suffered damage to his business or goodwill in consequence of inaccurate statements of whatever kind that may be made by rival traders about their own wares. The market in which the action for passing off originated was no place for the mealy mouthed; advertisements are not on affidavit; exaggerated claims by a trader about the quality of his wares, assertions that they are better than those of his rivals even though he knows this to be untrue, have been permitted by the common law as venial ‘puffing’ which gives no cause of action to a competitor even though he can show that he has suffered actual damage in his business as a result.’ The goodwill of a manufacturer’s business may well be injured by someone else who sells goods which are correctly described as being made by that manufacturer but being of an inferior class or quality are misrepresented as goods of his manufacture of a superior class or quality.

The court considered the nature of the tort of passing off. ‘I think that the principle on which both the courts of law and of equity proceed, in granting relief and protection in cases of this sort, is very well understood. A man is not to sell his.
  • Cited – Spalding (A G ) and Brothers -v- A W Gamage Ltd HL (84 LJ Ch 449, (1915) 32 RPC 273)

    The House considered the requirements for the tort of passing off. The judge has the sole responsibility for deciding whether anybody has been misled. He will hear evidence, but must not surrender his assessment to others.

    The claimant alleged that disparaging adverts by the defendant infringed its trade marks and amounted to the tort of malicious falsehood.

    Held: There was no dispute that the mark had been used. The Act could not be used to prevent any use of.
  • Cited – Chocosuisse, Kraft Jacobs Suchard (Schweiz) Ag, Chocoladefabriken Lindt & Sprungli (Schweiz) Ag -v- Cadbury Limited PatC (Times 25-Nov-97, Bailii. [1997] EWHC Patents 360)

    The plaintiffs brought actions in passing off against the defendant company in respect of their chocolate products. They objected to the use of the terms ‘Swiss Chocolate’ applied to chocolates not made in Switzerland.

    The registration of two trade marks (‘Budweiser’) with the identical names was against the Act since it would appear to encourage the very confusion the Act sought to avoid. Nevertheless, where there was genuine honest concurrent use, that use might.






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