ABSTRACT
True it is that it could not be shown that any purchaser of Keeling’s Old English Advocaat supposed or would be likely to suppose it to be goods supplied by Warnink or to be Dutch advocaat of any make. So Warnink had no cause of action for passing off in its classic form. Nevertheless, the learned judge was satisfied: (1) that the name ‘advocaat’ was understood by the public in England to denote a distinct and recognisable species of beverage; (2) that Warnink’s product is genuinely indicated by that name and has gained reputation and goodwill under it; (3) that Keeling’s product has no natural association with the word ‘advocaat’: it is an egg and wine drink properly described as an ‘egg flip’, whereas advocaat is an egg and spirit drink; these are different beverages and known as different to the public; (4) that members of the public believe and have been deliberately induced by Keeling to believe in buying their ‘Old English Advocaat’ they are in fact buying advocaat; (5) that Keeling’s deception of the public has caused and, unless prevented, will continue to cause, damage to Warnink in the trade and the goodwill of their business both directly in the loss of sales and indirectly in the debasement of the reputation attaching to the name ‘advocaat’ if it is permitted to be used of alcoholic egg drinks generally and not confined to those that are spirit based.
