Background
Warnink was one of the primary market producers of a Dutch liqueur made from a blend of hen egg yolks, aromatic spirits, sugar, and brandy, which it sold under the name "Advocaat". Townend produced a similar alcoholic drink but using egg and Cyprus wine which it sold as "Keeling's Old English Advocaat".
The Court held that Townend was passing off their goods as those of Warnink. In applying the test for passing off, the Court developed what is known as the "extended" tort of passing off which included any situation where goodwill is likely to be injured by a misrepresentation.
Lord Diplock established five criteria for a claim of extended passing off. There must be:
- misrepresentation
- by a trader in the course of trade
- to prospective customers of his or ultimate consumers of goods or services supplied by him,
- which is calculated to injure the business or goodwill of another trader, and
- which causes actual damage to the business or goodwill of the trader bringing the action.
Read more about this topic: Erven Warnink V. Townend & Sons Ltd.
Famous quotes containing the word background:
“In the true sense one’s native land, with its background of tradition, early impressions, reminiscences and other things dear to one, is not enough to make sensitive human beings feel at home.”
—Emma Goldman (1869–1940)
“Pilate with his question “What is truth?” is gladly trotted out these days as an advocate of Christ, so as to arouse the suspicion that everything known and knowable is an illusion and to erect the cross upon that gruesome background of the impossibility of knowledge.”
—Friedrich Nietzsche (1844–1900)
“They were more than hostile. In the first place, I was a south Georgian and I was looked upon as a fiscal conservative, and the Atlanta newspapers quite erroneously, because they didn’t know anything about me or my background here in Plains, decided that I was also a racial conservative.”
—Jimmy Carter (James Earl Carter, Jr.)