Commercial Law Index

The plaintiff was the registered proprietor for ‘Marie Classic Biscuits’. The defendant also sold biscuits, under the name ‘Aya Marie Biscuits’. The court considered whether the get-up of the defendant's product was similar to that of the plaintiff, whether it was likely to confuse average consumers, if there has been a passing off; and if so what remedies were applicable.

The court outlined the test for confusion about the get-up as concerning the perceptions of an average customer.

To establish ‘passing off’ the plaintiff must prove goodwill, misrepresentation and damage. Goodwill is the attractive force attached to the name, get-up or logo which brings in custom.

Misrepresentation is a false description made consciously or unconsciously by the defendant. Motive is not necessary. The onus for damages lies with the plaintiff; it must be proved that there was damage to goodwill.

The court found that the defendant’s get-up is similar to the plaintiff’s, the bulk of consumers identify the plaintiff's goods with the general impression of the red colour; in that light the plaintiff's goodwill is eroded. The court held that the red colour is not uniform for Marie biscuits around the world and therefore is not sufficient to satisfy the test of misrepresentation. The court also found that the plaintiff failed to prove actual damage to goodwill.

The court upheld the plaintiff's complaints and ordered an injunction to avoid the possibility of the defendant to reintroduce the products, and costs.