Diageo North America Inc and another v Intercontinental Brands (ICB) Ltd and others [2010] EWHC 17 (Ch), [2010] All ER (D) 133 (Jan)
It was established that passing off was characterised by five characteristics which had to be present in order to create a valid cause of action (i) there had to be a misrepresentation; (ii) made by a trader in the course of trade; (iii) to prospective customers of his or ultimate consumers of goods and services supplied by him; (iv) which was calculated to injure the business or goodwill of another trader; and (v) which caused actual damage to the business or goodwill of the trader by whom the action was brought.
The term “extended passing off” was a term that referred to a type of case in which suppliers of products of a particular description, sought to restrain rival traders from using that description or a confusingly similar term, in relation to goods which did not correspond to that description on the ground of passing off. In regard to misrepresentation, it was for the court to decide whether the defendant’s activities were likely to give
