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Chapter 3

The tort of passing off

This tort protects the goodwill, reputation and profits of a business.

The tort of passing off arises:

 where one business uses a name which is similar to that of an existing
business, and

 it misleads persons into believing that they are the same business, and

 it causes actual damage to that business or will probably do so.

Illustration 9 – The tort of passing off

EWING v BUTTERCUP MARGARINE CO LTD 1917

Facts:

Ewing who traded under the name Buttercup Dairy Company sued to restrain a
newly registered company called Buttercup Margarine Company Ltd from using
the name on the grounds that the general public might reasonably believe that
there was a link between the two businesses.

Held:

The court held that the word 'Buttercup' was so closely associated with Ewing
dairy products as to be likely to cause confusion if used by the similar margarine
business. An injunction was granted to prevent the defendant company from
trading under its name.

If passing off is proved, the court may restrain the business from trading under that
name and order that damages be paid to the person whose business has suffered
loss.

If a company feels than another company has a name which is too similar to its
own, it may object to the Company Names Adjudicator under CA 06. The
Adjudicator will consider the case and then make their decision. In most cases the
Adjudicator will require a name change, and in some cases the Adjudicator may
state the new company name.

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