Geography Reference
In-Depth Information
evidence of what the words mean to members of the public. If they convey nothing
more than their descriptive meaning the action must fail.'
6.176
There were, therefore, two questions to be addressed on this part of the case: (i)
would the words 'Swiss chocolate' have been taken by a significant section of the
public in England at the relevant time to mean, and to mean only, chocolate
made in Switzerland; and if so, (ii) did chocolate made in Switzerland have a
discrete reputation, distinct from other chocolate, which the Swiss Chocolate
Manufacturers were entitled to protect?
It is not necessary that the 'something more' must consist of a reputation for
higher quality or cachet. As Patten LJ explained in
Diageo North America Inc v
Intercontinental Brands (ICB) Ltd
185
(the
Vodkat
case):
6.177
But there is no legal requirement that the distinctiveness of the claimant's mark should
also be a badge of quality. Whether it generates goodwill in relation to the goods or
services sold will inevitably be determined by the impact which they have on con-
sumers. Doubtless the better the quality or the more fashionable they are, the more
likely it is that the necessary reputation and goodwill will be acquired. But this factor is
evidential in character and largely co-incidental. The law of passing-off is there to
protect the unlawful appropriation of goodwill through misrepresentation. It is not
there to guarantee to the general consumer the quality of what he buys. For that he must
look elsewhere.
186
In
Fage UK Limited v Chobani UK Limited
187
Briggs J analysed the earlier cases
by identifying that the fundamental question 'is whether the geographical trade
name has a pulling power that brings in custom, so that reputation and goodwill
can properly be said to be enjoyed by all producers within the class which use
that name for their product'.
188
This case concerned the term 'Greek yoghurt',
which Briggs J held had attracted substantial goodwill beyond a mere descrip-
tion of its place of origin to which consumers were indifferent.
189
6.178
In
Taittinger v Allbev
the High Court was concerned with the use of the name
'Elderflower Champagne' for the use of a soft drink.
190
Despite the unlikeli-
hood of English consumers thinking that the champagne houses of France were
now involved in the production of soft drinks, the Court took the view that the
6.179
185
[2010] EWCA Civ 920; [2011] RPC 110.
186
Ibid, at para 29.
187
[2013] EWHC 630 (Ch).
188
Ibid, at para 125.
189
Ibid, at para 133.
190
[1994] 4 All ER 75 CA.
