Passing off: Frameworks of Liability Debated

In theory the tort of passing off is limited to the protection of traders where a misrepresentation has damaged their goodwill: the so-called classic trinity. But passing off is a protean commercial tort, with a dual development in equity and the common law and the subject at times of ad hoc interim decisions. So at times it is applied beyond the confines of this classic trinity. For this reason a rigorous academic debate is needed, to help shape this tort. Recently, Wadlow and Davis have made valuable contributions to just such a debate. Their analyses and contributions differ both from each other and from the views of this writer. In the light of these conflicting perspectives, the purpose of this article is to debate the possible scope of this tort. At present judicial opinion appears divided on the proper role of this tort. This is at its most stark when the views of Aldous LJ are compared with those of Jacob LJ. Whereas the former referred to “ the cause of action traditionally called passing off, perhaps best referred to as unfair competition", the latter is adamant that “ … the tort of passing off cannot and should not be extended into some general law of unfair competition�. But even where courts purport to apply the classic trinity to similar facts, contrasting approaches can clearly be discerned. So in United Biscuits v Asda the promotion of the defendant’s product by the use of a cuddly sea-bird character was restrained in view of the claimant brand leader’s distinct use of a (different) cuddly sea bird for their product. Yet in Mars UK Ltd v Burgess Group Plc a similar deliberate referencing of the market leader by a new entrant (even including a pastiche of the market leader's famous promotional slogan) was not passing off but mere comparison. Asda similarly was allowed to "live dangerously" in Specsavers International Healthcare Ltd v Asda Stores Ltd. In Taittinger SA v Allbev Ltd the admitted desire of the defendant to attract the cachet of an association with champagne by calling his non-alcoholic cordial, Elderflower Champagne and referencing champagne in the design of its bottle was held to be passing off. Yet in Bulmer v Bollinger where the defendant also sought to transfer some of the glamour of champagne to their alcoholic product - promoted as Champagne Perry with a champagne-reflecting advertisement - no passing off was found by a majority of the Court of Appeal. In Irvine v Talksport Ltd the use without consent of a celebrity's image on the defendant's advertising was held to be passing off, the false impression being that the claimant was “happy to be associated� with the defendant's business. Yet in Harrods Ltd v Harrodian School the majority of the Court of Appeal rejected the allegation of a connection misrepresentation, given on the facts the public would not be misled into believing that the claimants had "made themselves responsible for the quality of the defendant's goods or services�. What is clear is that though at times a strict adherence to the classic trinity guides the courts, at others there is a manipulation of those same ingredients to achieve a desired result. This has obscured the direction of the tort, undermined coherence and has enboldened claimants. So in Mars UK Ltd v Burgess and L'Oreal v Bellure the claimant contended that misrepresentation was not always a necessary ingredient of the tort. In order to guide the courts the possible (conflicting) frameworks for this tort will be outlined. Subsequently, the rationale for each will be debated and a suggestion made.