Passing off is the straightforward rule that ‘…no man may pass off his goods as those of another’. The application of this rule was considered by the High Court in Jacob Fruitfield v United Biscuits in which Clarke J. began by noting that the judgment of the English House of Lords in Reckitt & Coleman Products Limited v. Borden Ink, was applicable in Ireland as well as England and Wales. In that case the House had held that there were three tests for establishing whether a case of passing off was made out. Clarke J. held that those three tests were:
- The existence of a reputation or goodwill in the claimants product including, where appropriate, in a brand name or get-up;
- The risk of confusion between what is alleged to be the offending product and the claimants product; and
- Whether damage to the claimants’ goodwill by virtue of any such confusion has been established
In Jacob Fruitfield v United Biscuits Clarke J. issued an injunction restricting the ability of the defendant to sell products under described as ‘Fig roll’ in Ireland, but not products described as ‘cream crackers’. In Mc Cambridge v Joseph Brennan Bakeries Peart J. held that the bread packaging used by the defendant could amount to passing off.
Consumer Protection Act 2007
In Mc Cambridge v Joseph Brennan Bakeries Peart J. also considered whether the plaintiff was entitled to an injunction pursuant to section 71 of the Consumer Protection Act 2007 on the basis that the defendant had engaged in a practice prohibited by that Act, namely one that was a ‘… unfair, misleading or aggressive commercial practice…’ Peart J. held to issue such an injunction ‘…it would have to be because what the defendant is found to have done in relation to the design of its packaging is a commercial practice ‘involving marketing or advertising’…’ He held that this was not the case and so an injunction did not issue under th