ABSTRACT

The common law rights of Toby Parkinsons Ltd lie in the right to bring an action for passing off against Tracy. To sustain a claim, Toby Parkinsons Ltd must prove the necessary elements of the tort. Classic passing off was defined by Lord Halsbury in Frank Reddaway & Co Ltd v George Banham & Co Ltd (1896) as the principle that ‘nobody has any right to represent his goods as those of somebody else’. In Erven Warnink BV v Townend & Sons (Hull) Ltd (1979) (the Advocaat case), five elements were identified: (1) a misrepresentation; (2) made in the course of trade; (3) to prospective customers in the course of trade; (4) which is calculated to harm the business reputation or goodwill of the claimant; and (5) damage. Subsequently, in Reckitt and Colman Products v Borden Inc (1990), these were reduced to the classic trinity of three elements: (1) a misrepresentation; (2) made in the course of trade; and (3) damage.