Geography Reference
In-Depth Information
6.168
The Advocaat case had concerned the claim by the Dutch producers of an
egg-flavoured alcoholic drink that the use of the word 'Advocaat' used by the
UK-based defendants suggested a Dutch origin for their product. Lord Fraser
in outlining the elements of a passing off action said that:
It is essential for the plaintiff in a passing-off action to show at least the following facts:
- (1) that his business consists of, or includes, selling in England a class of goods to
which the particular trade name applies; (2) that the class of goods is clearly defined,
and that in the minds of the public, or a section of the public, in England, the trade
name distinguishes that class from other similar goods; (3) that because of the
reputation of the goods, there is goodwill attached to the name; (4) that he, the plaintiff,
as a member of the class of those who sell the goods, is the owner of goodwill in
England which is of substantial value; (5) that he has suffered, or is really likely to suffer,
substantial damage to his property in the goodwill by reason of the defendants selling
goods which are falsely described by the trade name to which the goodwill is
attached. 174
2. Geographical marks and passing off
6.169
From its earliest development the British law of passing off prevented the
misuse of geographical terms. In Dunnachie v Young & Sons 175 the defendants
were enjoined from marking their fire bricks 'Young Glenboig' and advertising
them as 'made from Glenboig clay', because they were made from a seam of clay
about two miles from Glenboig.
6.170
The principal development of passing off law in relation to GIs occurred with
the Spanish Champagne case , 176 which formed the basis of protection for
champagne not only in England but also other common law jurisdictions. The
question which the court had to consider in that case was whether use of the
term 'Spanish Champagne' could be used in relation to a sparkling wine not
produced in the French Champagne district. The suit was instituted by one of
the French champagne houses on behalf of themselves and all other persons
who produce wine in the Champagne district and supply such wine to England
and Wales. The plaintiffs alleged that wine produced by the champagne houses
and each of them and supplied by them to England and Wales, was a naturally
sparkling wine produced in the Champagne district by a process of double
fermentation from the grapes grown in the Champagne district and that it was
long known to the trade and public throughout the UK as champagne and had
as such acquired a high reputation. They alleged that any member of the trade
174
[1979] AC 731, 755 G-756 A.
175
(1883), 10 R. (Ct. of Sess.) 874.
176
HP Bollinger v Costa Brava Wine Company Ltd [1959] 3 All ER 800.
 
Search WWH ::




Custom Search