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ausip:passing-off [2018/11/02 14:01]
jessiej_87 Formatting
ausip:passing-off [2019/02/25 15:16] (current)
jessiej_87
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 The court of equity were interested in passing off, not as a form of fraud, but in relation to the property aspects, namely the reputation of the trader. The equity court'​s focus on business reputation is one characteristic which is still central to todays tort of passing off.  ​ The court of equity were interested in passing off, not as a form of fraud, but in relation to the property aspects, namely the reputation of the trader. The equity court'​s focus on business reputation is one characteristic which is still central to todays tort of passing off.  ​
  
-##Three Core Elements+## The Elements ​of Passing Off
  
 Passing off has three core elements known as "the classic trinity"​. ((*ConAgra Inc v McCain Foods (Aust) Pty Ltd* (1992) 33 FCR 302 at 355-356 (Gummow J) citing *Reckitt & Colman Products Ltd v Borden Inc* [1990] RPC 341 at 406 and *Consorzio del Prosciutto di Panna v Marks and Spencer plc* [1991] RPC 351 at 368-369; *TGI Friday’s Australia Pty Ltd v TGI Friday’s Inc* (1999) 45 IPR 43, [25])) Passing off has three core elements known as "the classic trinity"​. ((*ConAgra Inc v McCain Foods (Aust) Pty Ltd* (1992) 33 FCR 302 at 355-356 (Gummow J) citing *Reckitt & Colman Products Ltd v Borden Inc* [1990] RPC 341 at 406 and *Consorzio del Prosciutto di Panna v Marks and Spencer plc* [1991] RPC 351 at 368-369; *TGI Friday’s Australia Pty Ltd v TGI Friday’s Inc* (1999) 45 IPR 43, [25]))
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-### When must Reputation be Established?​+#### When must Reputation be Established?​
  
 The plaintiff’s reputation must be assessed at the date of the commencement of the conduct complained of. ((*Cadbury v Squash*)) This means that a plaintiff who would not have succeeded at that date will not do so by the acquisition of a greater reputation. Note, however, that a right of action may be sustained even where the plaintiff no longer trades – provided there is residual goodwill. However, it is vital that the necessary reputation remain. It can be assumed that, over time, reputation will fade, and hence, any rights under passing off will also fade. The plaintiff’s reputation must be assessed at the date of the commencement of the conduct complained of. ((*Cadbury v Squash*)) This means that a plaintiff who would not have succeeded at that date will not do so by the acquisition of a greater reputation. Note, however, that a right of action may be sustained even where the plaintiff no longer trades – provided there is residual goodwill. However, it is vital that the necessary reputation remain. It can be assumed that, over time, reputation will fade, and hence, any rights under passing off will also fade.
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 Held: Name was distinctive of both place of origin and quality. ​ Held: Name was distinctive of both place of origin and quality. ​
  
-### Reputation established in the relevant jurisdiction+#### Reputation established in the relevant jurisdiction
 The reputation must be established in the jurisdiction,​ but note that there is no requirement that the trader has actually traded in the jurisdiction,​ or even that their goods have been sold in the jurisdiction. Rather, reputation can be established by showing that people in the jurisdiction would be aware of the plaintiff’s reputation ((*ConAgra*)) ​ For sufficient reputation to be found there must also be a substantial number of persons in the jurisdiction who are aware of the plaintiff’s goods/​services. ((*ConAgra* per Gummow J)) The reputation must be established in the jurisdiction,​ but note that there is no requirement that the trader has actually traded in the jurisdiction,​ or even that their goods have been sold in the jurisdiction. Rather, reputation can be established by showing that people in the jurisdiction would be aware of the plaintiff’s reputation ((*ConAgra*)) ​ For sufficient reputation to be found there must also be a substantial number of persons in the jurisdiction who are aware of the plaintiff’s goods/​services. ((*ConAgra* per Gummow J))
  
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