8. Passing off

2019 ◽  
pp. 179-206
Author(s):  
Stavroula Karapapa ◽  
Luke McDonagh
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Trade Mark ◽  
Passing Off ◽  
The Public ◽  
The United Kingdom ◽  
Erroneous Belief

This chapter explores the tort of passing off which protects the goodwill of a trader from misrepresentation. In the United Kingdom, there is no obligation to register a trade mark. Protection has always been available at common law for marks in use, by means of the action for passing off. There are three elements of passing off. First a trader must establish that the trader has a goodwill or reputation attached to the goods or services which the trader supplies. Second, the trader must demonstrate that the defendant has made a misrepresentation leading or likely to lead the public to believe that the goods or services offered by the defendant are the goods or services of the claimant. Lastly, the trader must demonstrate that the trader has suffered or is likely to suffer damage by reason of the erroneous belief caused by the defendant's misrepresentation. These three elements are interdependent.

Acquisition Of Rights

2017 ◽  
Author(s):  
Annette Kur ◽  
Martin Senftleben
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Trade Mark ◽  
Nordic Countries ◽  
The European Union ◽  
Legal Regime ◽  
Passing Off ◽  
The United Kingdom ◽  
Trade Mark Law ◽  
European Trade

Under European trade mark law, protection is only acquired through registration (Article 6 EUTMR; Article 1 TMD). Whether the mark is actually used or not is of no relevance at this stage: neither is it a requirement for protection, nor does it grant a substantive right under the European Union Trade Mark Regulation (EUTMR) or the Trade Mark Directive (TMD). However, such protection may follow from national law. Member States are free to grant use-based trade mark protection within their jurisdiction, and in a number of them—Austria, Germany, Italy, the Nordic countries, and, in the form of passing off, the United Kingdom—such protection is available under terms that may differ from country to country. The specificities of the legal regime applying to such signs are independent from the provisions in the TMD.

Pure or Mixed? The Evolution of Three Grounds of Judicial Review of the Administration in British and Israeli Administrative Law

2013 ◽  
pp. 1-36
Author(s):  
Margit Cohn
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Civil Law ◽  
Administrative Law ◽  
Public Law ◽  
Legal Systems ◽  
The Public ◽  
The United Kingdom ◽  
Anglo American ◽  
Distinct Features

This article challenges common understandings about the distinct features of the so-called “mixed jurisdictions”. One of the main features found in this group of legal systems, it is argued, is that they are civil-law in nature in the sphere of private law, while their public law sphere is typically Anglo-American. I argue that this may be correct as far as the structural elements of these two branches of law, for example with regard to the court structure; it may also be relevant in the context of the general, overarching values underlying both branches of law. However, as far as the detailed arrangements are concerned, a variety of set-ups reflect different types of mixes and combinations in all legal systems, including “mixed jurisdictions”: innovation, transplantation and adoption of which can be traced inter alia to global crosscutting between these two families of legal systems.This argument is developed through an analysis of the evolution of three grounds of review of the administration-unreasonableness, proportionality and legitimate expectations/ administrative promise-in the United Kingdom, the “ancestor” of the common law family of legal systems, and in Israel, currently considered a mixed jurisdiction. I show that both innovation and reliance on civil law constructs can be found in both systems just as much as common law constructs. The influence of EU law, especially ECtHR jurisprudence, renders the public law of the United Kingdom, to a certain extent, to be more civil-law-like than its so-called daughter system. Whether this mix of patterns is an unavoidable result of the irresolvable tension between exclusionism and openness, both willful and subjected, or matter that is particular to the distinct nature of administrative law and its case-by-case development in common law systems is a matter for further consideration. Clearly, though, legal reality, at least in the field studied in this article, challenges the viability of the distinction between “pure” and “mixed” legal systems.

scholarly journals Starbucks (HK) Case Note: The Ambiguous Limb of Goodwill and the Tort of

2017 ◽  
Vol 48 (1) ◽  
pp. 55
Author(s):  
Olivia Lewis
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Case Note ◽  
Public Interests ◽  
Passing Off ◽  
The United Kingdom

This article looks at the United Kingdom Supreme Court's decision in the case of Starbucks (HK) Ltd v British Sky Broadcasting Group PLC (Starbucks). In this case Lord Neuberger reaffirmed that the traditional "hard-line approach" is the applicable test for the goodwill limb under the tort of passing off in the United Kingdom. This approach maintains that in order to succeed in a claim for passing off, the claimant must show that they have goodwill in the form of business and customers in the jurisdiction. A significant reputation among a sufficient section of the prospective purchasing public within the jurisdiction (the "soft-line approach") was held to be insufficient. This article critically analyses Lord Neuberger's reasoning in favour of the traditional hard-line approach. It is found that his approach was out of touch with modern commercial reality. In conclusion, it is argued that Lord Neuberger did not strike the appropriate balance between the competing public interests in protection and competition, and it is contended that he should have adopted the more factually inquisitive soft-line approach. This would have brought the United Kingdom into line with what is arguably the more dominant and justifiable trend in other common law jurisdictions, thereby avoiding the enduring uncertainty which is likely to follow this decision.

The British Are Coming!

2018 ◽  
Author(s):  
Bernardo Bátiz-Lazo
Keyword(s):  
United Kingdom ◽  
Historical Record ◽  
Prime Mover ◽  
The Public ◽  
The United Kingdom

Chapter 3 (‘The British Are Coming!’) explains the origins of the technology in the United Kingdom. It is widely assumed that the operation of a machine in the Enfield branch of Barclays was the ‘prime mover’ in this industry. However, the historical record fails to identify a hero inventor; rather multiple independent versions of the cash machine were launched at more or less the same time in different countries. Yet in spite of the great fanfare, there was no real race to market. There is no evidence the engineers responsible for them knew of each other’s existence before this launch (but many bankers did). Four years later, very few members of the public knew the cash machine existed, even less had used them and only a handful found them convenient.

The Trade Mark, Other Product Designations, and Goodwill

2017 ◽  
Author(s):  
Justine Pila
Keyword(s):  
Subject Matter ◽  
Common Law ◽  
Trade Mark ◽  
Geographical Indication ◽  
Passing Off ◽  
Rights Protection ◽  
Essential Properties ◽  
The Subject ◽  
The Common ◽  
The Relationship

This chapter considers the meaning of the terms that appropriately denote the subject matter protectable by registered trade mark and allied rights, including the common law action of passing off. Drawing on the earlier analyses of the objects protectable by patent and copyright, it defines the trade mark, designation of origin, and geographical indication in their current European and UK conception as hybrid inventions/works in the form of purpose-limited expressive objects. It also considers the relationship between the different requirements for trade mark and allied rights protection, and related principles of entitlement. In its conclusion, the legal understandings of trade mark and allied rights subject matter are presented as answers to the questions identified in Chapter 3 concerning the categories and essential properties of the subject matter in question, their method of individuation, and the relationship between and method of establishing their and their tokens’ existence.

scholarly journals Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions

2013 ◽  
Vol 77 (1) ◽  
pp. 41-55
Author(s):  
Kenneth J. Arenson
Keyword(s):  
United Kingdom ◽  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Limited Extent ◽  
Natural Consequence ◽  
Privy Council ◽  
The Public ◽  
Adversarial System ◽  
The Common

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems

1995 ◽  
Vol 29 (4) ◽  
pp. 551-564
Author(s):  
Dawn Oliver
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Common Law ◽  
Public Law ◽  
Constitutional Reform ◽  
Academic Literature ◽  
The United Kingdom ◽  
The Common ◽  
Executive Agencies ◽  
The Relationship

First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.

scholarly journals The Determinants of Charity Misconduct

2017 ◽  
Vol 47 (1) ◽  
pp. 107-125 ◽  
Author(s):  
Diarmuid McDonnell ◽  
Alasdair C. Rutherford
Keyword(s):  
Multivariate Analysis ◽  
United Kingdom ◽  
Two Dimensions ◽  
Regulatory Action ◽  
The Public ◽  
Administrative Dataset ◽  
The United Kingdom ◽  
The Subject ◽  
Public Scrutiny

Charities in the United Kingdom have been the subject of intense media, political, and public scrutiny in recent times; however, our understanding of the nature, extent, and determinants of charity misconduct is weak. Drawing upon a novel administrative dataset of 25,611 charities for the period 2006-2014 in Scotland, we develop models to predict two dimensions of charity misconduct: regulatory investigation and subsequent action. There have been 2,109 regulatory investigations of 1,566 Scottish charities over the study period, of which 31% resulted in regulatory action being taken. Complaints from members of the public are most likely to trigger an investigation, whereas the most common concerns relate to general governance and misappropriation of assets. Our multivariate analysis reveals a disconnect between the types of charities that are suspected of misconduct and those that are subject to subsequent regulatory action.

scholarly journals Comparative Study on Copyright Exception for Teaching Purposes: Australia, Malaysia and the United Kingdom

2020 ◽  
Author(s):  
Ratnaria Wahid ◽  
Ida Madieha Abdul Ghani Azmi
Keyword(s):  
United Kingdom ◽  
Developed Countries ◽  
Copyright Law ◽  
Public Access ◽  
International Treaties ◽  
Human Right ◽  
The Public ◽  
The United Kingdom ◽  
Copyright Exception ◽  
Materials Used

While education is considered a basic human right, the copyright system however seems to hamper public access to information and knowledge. This is especially so when information that largely comes from developed countries are used as commodities that have to be bought by developing countries. This paper compares the international and national laws in Malaysia, United Kingdom and Australia on the copyright exceptions to materials used for teaching purposes. It analyzes the different ways countries manage and balance between copyright owners and copyright users’ interest and shows that in many circumstances, copyright owners are over-protected by national copyright systems although this is not required by international copyright law. This paper also shows that international treaties governing copyright law do allow some flexibility for member countries to implement copyright systems based on their own needs and circumstances but such opportunity is not fully utilized by member countries for the benefit of the public.  

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