Torts 1 PASS Week 3

Burford & Sons Ltd v Mowling & Son states someone...

• Must use the registered trade mark of another

• Must not use the registered trade mark of another

• Must not put his goods in such a form to deceive ordinarily intelligent persons into mistaking the goods for other goods

• Must put his goods in such a form to deceive ordinarily intelligent persons into mistaking the goods for other goods

The elements of passing off come from which case

• Burford & Sons Ltd v Mowling & Sons

• Reckitt & Colman

• Peter Bodum A/S v DKSH Australia Pty Ltd

The elements of passing off are...

• The plaintiff must have goodwill or reputation attached to the goods or services

• There mustn't be misrepresentation by the defendant

• The plaintiff must demonstrate that they have or are likely to suffer damage due to the defendant's misrepresentation

• There must be misrepresentation by the defendant

In the case of Hansen Beverage Company v Bickfords (Australia) Pty Ltd, the court found there was a passing off

• True

• False

What evidence is required to show reputation?

• Time on the market

• The nature and amount of promotion

• The nature and degree of the sales network

• The volume of sales - quantity and monetary

For the evidence required to show reputation, can you only show time on the market for example, and you’ve sufficiently established a reputation?  

• Yes

• No

• Sometimes

ConAgra Inc v McCain Foods established...

• It was not necessary for a plaintiff to establish a place of business in Australia

• It was necessary for a plaintiff to establish a place of business in Australia

A misrepresentation is where...

• The plaintiff 'passes' off some connection between the plaintiff (or their goods) and the defendant

• The defendant 'passes off' some connection between the defendant (or their goods) and the plaintiff

As most soft drinks are in cans, could it be considered a passing off if similar flavoured soft drinks are in cans but have different logos?

• Yes, that's a passing off

• No, that's not a passing off

In the case of Reckitt & Coleman v Berdon Inc [1990] 1 All ER 873, the court held there was a passing off

• True

• False

Answer explanation