George Banham & Co. Ltd [1896] AC pg 199, HL, where he stated that, „nobody has the
right to represent his goods as the goods of somebody else‟. Over the past century passing off
has developed on case by case basis. Different factual situations has led to the expansion of
the law as Lord Oliver observed in Reckitt & Coleman Products Ltd —Vs- Borden Inc
[1990] RPC 341, CA, the Jif Lemon‟ case „this is not a branch of the law in which reference
to other cases is of any real assistance except analogically.‟
The classic definition of passing off is in the „Jif Lemon‟ case, where Lord Oliver endorsed
Lord Diplock‟s definition and reduced to three key elements: goodwill, misrepresentation and
damage. He said:
“First the Plaintiff must establish a goodwill or reputation attached to the goods or
services which supplies in the mind of the purchasing public by which the identifying
get-up‟ (whether it consists simply of a brand name or a trade description or the
individual features of labeling or packaging,) under which his particular goods or
services are offered to the public, such that the get-up is recognized by the public as
distinctive specifically of the Plaintiff‟s goods or services. Secondly, he must
demonstrate a misrepresentation by the Defendant to the public (whether or not
intentional) leading or likely to lead the public to believe that goods or services
offered by him are the goods or services of the Plaintiff… Thirdly, he must
demonstrate that he suffers or, in a quia timet action, is likely to suffer damage by
reason of the erroneous belief engendered by the Defendant‟s misrepresentation that
the source of the Defendant‟s goods or services is the same as the same as the source
of those offered by the Plaintiff”
See also: Intellectual Property Law by Jennifer Davis, Butterworths page 161 -164.
I have found some striking similarities in the get up of the two products. There is also no
dispute that both the Plaintiff and the Defendant are registered owners of the
trademark in question. One is registered in Kenya in 1989 and the other one is registered in
Uganda in 2002. Both of them are manufacturing and distributing for sale in the Ugandan
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