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Law Notes Intentional Torts Notes

Passing Off Notes

Updated Passing Off Notes

Intentional Torts Notes

Intentional Torts

Approximately 320 pages

Intentional Torts deal with trespasses to person, land and goods, as well as privacy. They cover aspects such as assault, battery, conversion and detinue. These notes do not include negligence....

The following is a more accessible plain text extract of the PDF sample above, taken from our Intentional Torts Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

PASSING OFF INTENTIONAL TORTS | 151 PASSING OFF * * An intentional tort of misrepresentation o The defendant represents that their product originates or is in some way associated with the plaintiff's when this is not the case o Protects reputation and goodwill SS? Trade marks protect against the unauthorized use of the register mark Elements: o The plaintiff must have goodwill or reputation attached to the goods or services o There must be misrepresentation by the defendant o The plaintiff must demonstrate that they have or are likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation SS? The third element is most important when arguing for more than just nominal damages SS? Generally when the first two are present, there is passing off Burford & Sons Ltd v Mowling & Son (1909) 8 CLR 212, 216 "There is no doubt about the law in such a case. Every trader has prima facie a right to put up his goods in any packages, which he may think attractive and convenient, and in any method which he may consider suitable for the carrying on of his trade. But that right is subject to limitations. He must not use the registered trade mark of another, and he must not put up his goods in such a form as to be likely to deceive ordinarily intelligent persons into mistaking his goods for goods known in the market as manufactured, put up, or sold, by another. " ---- O'Connor J Coke v Pepsi: * Coca Cola brand is so present in society that it will not be confused for Pepsi * Different branding * Different colouring 152 | INTENTIONAL TORTS The 3--Part Test (classical trinity): * A 3 part test is set out in Reckitt v Colman and approved in a number of cases * Gummow J referred to it as the 'classical trinity' of passing off o ConAgra v McCains 1. First, the plaintiff must have goodwill or reputation attached to the goods or services 2. Second, there must be misrepresentation by the defendant, whether intentional or not, which leads or is likely to lead the public to believe that the goods or services offered by it are those of the plaintiff 3. Third, the plaintiff must demonstrate that they have, or are likely to, suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation Bodum v DKSH Australia Pty Ltd * Bodum had been selling their coffee plunger since the 1950's, marketing it by its appearance o Widely advertised o Substantial sales in Australia o Significant reputation within the market * DKSH introduced their own plunger into the market, also advertising by its appearance o Sold with no branding o Large photo on the packaging, similar to Bodum's * Whether DKSH were passing off Bodum's reputation * HELD: DKSH was passing off o The design of goods can acquire a reputation independently of the trade names o The majority (Greenwood J, Tracey J) reviewed Bodum's advertising - plunger without packaging, focus on the appearance and features of the product o Not generic features: therefore, consumers were likely to think that the DKSH plunger was the Bodum plunger unless labelling or other differentiating factors told them otherwise o The reasonable or ordinary consumer would consider the DKSH plunger to be the Bodum plunger SS? passing off does not stop companies from copying an unregistered design of another company's product, so long as they make it clear - labelling etc - that the copy does not come from the original company INTENTIONAL TORTS | 153

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