Geography Reference
In-Depth Information
5. Genericity
6.183
As with trade marks and GIs, genericity can be an obstacle to a successful action
in passing off. This was raised incidentally in the 1913 case
Anderson v
Britcher
.
195
The respondent had been charged with unlawfully selling as 'Dem-
erara sugar' a sugar that was 'cane sugar crystals coloured with an organic dye
foreign to genuine Demerara sugar, so that the sugar was not of the quality,
substance, or nature of the article demanded by the purchaser'. It was found by a
police magistrate that the sugar was a crystallised cane sugar grown in Mauri-
tius and coloured with dye. The magistrate dismissed the charge, finding that
the term 'Demerara sugar' was a
generic term applicable to any sugar of the substance, kind, and colour of the sugar in
question wherever produced, and that therefore the said sugar was of the nature,
substance, and quality of the article demanded by the appellant, the purchaser, and that
accordingly the sale was not to his prejudice, and that no offence had been committed
by the respondent.
The case was appealed to the Kings Bench Court. In dismissing the appeal, the
Court agreed with the magistrate's view on the genericity of 'Demerara' and
observed that:
6.184
It would appear that 'Demerara sugar' does not mean sugar having certain qualities
peculiar to Demerara sugar, but it means a sugar which is cane sugar and which has a
particular colour owing to certain treatment, and it is stated that Demerara sugar as
originally produced was white, and probably if a person asked for Demerara sugar and
was offered real Demerara sugar in its natural state he would refuse it. This sugar which
the appellant got when he asked for Demerara sugar was Demerara sugar in every single
particular as understood by everybody who deals with such things, except that it was
grown, not in Demerara, but in Mauritius.
It was stated and admitted that with regard to Demerara sugar the word 'Demerara,' as
applied to sugar, does not mean sugar grown only in Demerara; it means sugar grown in
Demerara, or in Grenada, Martinique, or St. Kitts, or Tobago, or Barbados, or
Dominics [sic] or in many other islands of the West India group, and therefore the case
really is hardly distinguishable from that of a Brussels carpet, which nobody supposes to
be necessarily a carpet made in Brussels, or the case of a Cambridge sausage, which I
suppose nobody believes to come necessarily from Cambridge.
196
195
(1913) 24 Cox's Criminal Law Cases, 60.
196
Ibid, at 65.
