Misrepresentation and Damage
Chapter One Hundred Five
Syllabus topic 3.3, "Infringement and Passing Off."
Pages 471 to 475 of 742
In one line
Misrepresentation is conduct that leads the public to believe the defendant's goods are the plaintiff's, it need not be spoken and it need not be intended, and the damage that follows from it is presumed far more readily than it is proved.
Element two: misrepresentation
The element, stated fully. The defendant must make a misrepresentation, in the course of trade, to prospective customers or ultimate consumers, leading or likely to lead them to believe that the goods or services he offers are the goods or services of the plaintiff.
Four things follow from that sentence, and each is examinable.
It need not be in words. Selling lemon juice in a lemon shaped bottle says nothing; it represents everything. Copying a get up, a colour scheme, a bottle, a shop front or a trading style is a representation by conduct.
It need not be intended. The tort operates whether or not the defendant meant to deceive. Intention matters to the remedy, not to the cause of action.
It must be made to the buying public, not to the trade rival. A statement in a private letter to the plaintiff is not a misrepresentation to customers; it may instead be a groundless threat under section 142, worked in chapter 1380.
And it must be a representation of ORIGIN, or of a connection. Saying "my goods are as good as his" is not passing off. Saying, by name or get up, "my goods are his" is.
What may be misrepresented
| The misrepresentation | Example | Chapter |
|---|---|---|
| That the goods are the plaintiff's | Same name on the same goods | This one |
| That the business is the plaintiff's | A shop opened under the plaintiff's trading name | 1180 |
| That there is a trade connection, licence or approval | Unauthorised merchandise | 1500 |
| That the defendant's goods are of the plaintiff's class or quality | Extended passing off, Advocaat | 1200 |
| That the plaintiff's goods are the defendant's | Reverse passing off | 1200 |
| That the plaintiff's goods are inferior | Disparagement in advertising | 1510 |
Proving it: the similarities, not the differences
Parle Products (P) Ltd. v J.P. & Co., Mysore, AIR 1972 SC 1359.
Facts. Parle sued over the wrapper of its GLUCO biscuits, alleging that the defendant's wrapper for its own biscuits was deceptively similar. Both wrappers used a similar colour scheme and a farm girl device with cows.
Held. The Supreme Court found infringement. In deciding whether two marks are deceptively similar the court must not place them side by side and examine them minutely; it must look at the broad and essential features, judged by a man of average intelligence and imperfect recollection, and it is the overall similarity that counts.
Heinz Italia v Dabur India Ltd., (2007) 6 SCC 1.
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