be fatal to Harrods’ claim for passing off. The Elderflower Champagne case also calls into question the need for confusion to be present for a passing off action to succeed. PLAINTIFF HAS SUFFICIENT GOODWILL IN ‘GET-UP’ : The basis of all passing off actions is the protection of goodwill. In Star [1975] FSR 256 the appellant, a Hong Kong company, made toothbrushes which it sold in Singapore under the mark ‘Ace Brand’ with accompanying device. This mark was not registered in Singapore. In October 1965, the Singapore government imposed an import duty which

doi:10.4324/9781843142928-147

Chapter

be fatal to Harrods’ claim for passing off. The Elderflower Champagne case also calls into question the need for confusion to be present for a passing off action to succeed. PLAINTIFF HAS SUFFICIENT GOODWILL IN ‘GET-UP’

Chapter

ABSTRACT

At common law this right of user of the mark or get-up in Singapore was incapable of being assigned except with the goodwill of that part of the business of the Hong Kong company in connection with which it had previously been used. So, if despite the temporary cesser of the Hong Kong company’s business in Singapore after the import duty on toothbrushes had been imposed in 1965, it still retained – as well it might (cf Mouson & Co v Boehm [1884] 26 Ch D 398) – a residue of goodwill capable of being revived in 1968, any right of property in that goodwill would have passed to the Singapore company under the agreement. The Singapore company is not a party to these proceedings and their Lordships express no view as to what rights, if any, it would have been entitled to enforce against the respondent if it had been the plaintiff in a passing off action brought against him.