ID No.

G20618148

Part A

There is a misunderstanding among Thomas Vengarbron’s (Venga) fans that he has made an

endorsement with Macho Modes Plc for a vest which features his image. Consequently, Venga

is making claims for passing off under English law.

In the current case, Venga is the claimant while Macho Modes Plc is the defendant. In the

Douglas v. Hello1 , it was held that in England there is no image right to celebrities, as result no

action for breach of Venga’s privacy can be initiated against the independent photographer

who took the photograph and licensed it with Macho Modes Plc.

Passing off is the common law of action that protects traders against misrepresentations made

by their others. For an action in passing off, it must be proved that customer confusion has

taken place.

In ‘JIF Lemon2’ case, Lord Oliver sets three basic elements known as the ‘classic trinity’ which

are essential for an action in passing off:

1
[2007] UKHL 21
2
Reckitt & Coleman Products Ltd v. Borden Inc (No. 3) [1990] 1 WLR 491, 499,

1
 1. Goodwill

2. Reputation –the act of misrepresentation by the defendant which deceives.

3. Damage or in a quia timet action, the likelihood of damage.

In the Advocaat3 case, Lord Diplock stated five elements4 necessary to bring a passing off action

- a misrepresentation made by a trader to potential customers which causes damage to the

goodwill another trader who bring an action for a passing off. In the same case, Lord Fraser

highlighted on the importance of goodwill existing in England and explained that the business

of trade of the goods must be traded in England. There must be a goodwill attached to that

name and the claimant is the proprietor of the goodwill of strong value in England. Due to the

act of the defendant, his goodwill has suffered or is likely to suffer.

Another important aspect with regards to passing off action is ‘the common field of activity’. In

the case of ‘Uncle Mac’5, it was held that there should be a common field of activity between

the defendant and the claimant for a passing off action to succeed. However, in the cases of

Henderson v. Radio Corporation Pty Ltd6 and the Advocaat7 case, it was stated that there is no

3
Erven Warnick BV v. J Townend & Sons (Hull) Ltd [1979] AC 731
4
Quoted from Erven Warnick BV v. J Townend & Sons (Hull) Ltd [1979] AC 731: ‘1. A misrepresentation; 2. Made by a trader in
the course of trade; 3. To prospective customers of his ultimate consumers of goods or services supplied by him; 4. Which is
calculated to injure the business or goodwill of another trader; 5. Which causes actual damage to a business or goodwill of the
trader by whom the action is brought or (in a quiat timet) action will probably do so.’

5
Mc Culloch v. Lewis A May (Produce Distributors) Ltd [1947] 2 All ER 845
6
[1969] RPC 218
7
Erven Warnick BV v. J Townend & Sons (Hull) Ltd [1979] AC 731

2
need for a common field of activity between the claimant and the defendant for a passing

action to succeed.

In Rihanna v. Topshop8, three important elements of the ‘classic trinity’ that is goodwill,

misrepresentation and damage which must be proved by the claimant has been elaborated.

The Judge Mr Justice Birss clearly pointed out in this case that if these elements are not proved

Rihanna cannot refuse the sale of her image on the t-shirts.

Lord Mac defined goodwill in the case of IRC v. Muller & Co’s Margarine9 as being a good

reputation attached to a business which attracts customer. 10 It is important to also point out

that passing off is a tort which protect intangible ownership of goodwill. In English court, claim

for passing off outside England jurisdiction will not be acknowledged. The general rule is that

there should be ‘customers within that jurisdiction’- the goods must have been sold or must be

available for sale to customers within that jurisdiction. ‘Thus, the claimant must have a

‘market’ in England for its goods to have the requisite goodwill.’ 11

8
[2013] EWHC 2310 (Ch)
9
[1901] AC 217, 233-4
10
Quoted from IRC v. Muller & Co’s Margarine [1901] AC 217, 233-4: ‘a benefit and advantage of the good name, reputation
and connection of a business. It is the attractive force which brings in custom… However widely extended or diffused its
influence may be, goodwill is worth nothing unless it has the power of attraction sufficient to bring customers home to the
source from which it emanates.’
11
Anheuser-Busch Inc v. Budejovickly Budvar NP [1984] FSR 413.

3
Misrepresentation is the second most important element in a passing off action.

Misrepresentation must be actionable that is which deceives a substantial number of customers

which eventually causes damage to the claimant. In the case of Woolley v. Ultimate Products

Ltd 12, it was stated that misrepresentation must lead to confusion to a substantial number of

the public, however, ‘substantially’ does not mean counting the number of head but it is rather

relative to the product and the market. As pointed out in Stringfellow13, an actionable

misrepresentation which cause damage or likely to cause damage to the claimant’s goodwill is

important for a successful action in passing off.

The tort cover different categories of misrepresentations and one of the most common types of

actionable misrepresentations is that the claimant has endorsed the defendant’s goods. In case

of false endorsement, much protection has been allowed to claimants and this has been

confirmed in the case of Irvine v. Talksport Ltd14. In Irvine15 Laddie J explains that in an

endorsement of a good or service, someone associates his name to the good or service which

acts as an encouragement to the public to purchase the good or service. By this act, the person

tells the public that he has approved the product and he is happy to be associated with it.

Laddie J further states that for a successful action in passing off in a case of endorsement, the

three elements – goodwill, misrepresentation and damage must be met.

12
EWCA Civ 1038 at para 5
13
Stringfellow v. Mc Cain Foods (GB) Ltd [1984] RPC 501
14
[2002] EWHC 67 (Ch).
15
Irvine v. Talksport Ltd[2002] EWHC 67 (Ch)

4
Damage is the third element which Lord Oliver identified as important to establish an action in

passing off in the case of ‘Jif Lemon’16. According to him, the claimant must prove that he has

suffered or is likely to suffer from the misrepresentation of the defendant that the goods or

services of the latter is similar to those of the claimant. The role of damage in a passing off

action consists of two general principles namely:

1. The damage must be a result of the defendant’s misrepresentation

2. There is no need for actual damage, as long as the claimant can show that there is

likelihood of damage.

The damage must also be on the claimant’s goodwill. ‘The courts frequently assume that there

is damage, or a likelihood of damage, if the claimant is able to prove that there is goodwill and

a misrepresentation’17. There are five categories of damages in passing off:

i. Direct loss of sales

ii. Loss of reputation or control over reputation

iii. Dilution

iv. Loss of licensing opportunity

v. Damage for false endorsement.

16
Reckitt & Coleman Products Ltd v. Borden Inc (No. 3) [1990] 1 WLR 491, 499
17
C.Wadlow, The Law of Passing Off: Unfair Competition by misrepresentation (3 rd edn, London: Sweet & Maxwell, 2004), p244;
Stringfellow v. Mc Cain Foods (GB) FSR 175, [1984] RPC 501; Harrods, as per Millet LJ at p 714.

5
Defense:

The Flaming V logo which represents Venga’s branding is used on his different authorized

products. However, some authorized products neither bear the logo nor the word ‘Venga’.

Although the logo is not used for certain authorized products, it does not amount to the

assumption of customers that Venga has not authorized the products.

Being a seller of inexpensive fashionable clothes, it is probable that no endorsement

agreements for clothing are signed with celebrities like Venga. Consequently, it can be

assumed that there will be no belief in Macho Modes’ customers mind that the vest has been

authorized by Venga who normally has endorsement agreements with top luxury brands.

Since the products of Macho Modes Plc are sold in UK and there is a ‘market within the

jurisdiction’18 in England, Venga can initiate legal proceedings in English Court.

Considering the goodwill which Venga has as a fashion icon and boxer, Macho Modes Plc ran a

competition where the winner would have a personal shopping experience with Venga. Upon

seen wearing or approving an item of clothing on social networks, teenagers view this as an

endorsement by Venga. Being a world famous boxer and a fashion icon, Venga has sufficient

18
Anheuser-Busch Inc v. Budejovickly Budvar NP [1984] FSR 413.

6
goodwill in England. Considering the facts of this case, Venga has sufficient goodwill to succeed

in a passing off action.

Referring to last year’s competition run by Macho Modes Plc, a personal shopping experience

with Venga was the first prize. This competition would have had a significant impact on Venga’s

fans. This connection between the two parties would have helped to accentuate on the

association between Venga and Macho Modes Plc in the mind of Venga’s fans.

In same breathe; the message of Venga’s visit to Macho Modes Plc ‘Venga has just…’ onto an

Internet Micro blogging by Macho Modes Plc staff would have a considerable impact on

Venga’s fans. Since teenagers are mostly fans of Venga, they should be connected to blogs

following their fashion icon, Venga. Such a message will certainly enhance the belief of Venga’s

fan that the sale of the vest has been authorized by Venga. Furthermore, Macho Modes Plc has

taken full of advantage of Venga’s public position as a fashion icon and this would boost its

sales.

Since Venga has various endorsement contracts with luxurious top brands products it is

important to consider his market value as a fashion icon. With reference to the case of Irvine v.

Talksport Ltd19 importance has been given to the image and market value of Mr Irvine who had

19
(Damages) [2002] EWHC 539 (Ch), [2003] EMLR 6,

7
previously entered into endorsement agreements with famous brands 20. Laddie J correctly set

the level of damages at what the defendants would have to pay ‘to do lawfully what was done

unlawfully.’

Due to the fact that Venga has endorsement agreement with luxury top brand it is relevant to

consider the judgment of Irvine 21 case. In view to ascertain the preservation of Venga’s image

as a fashion icon and his market value, it will be appropriate for Macho Modes Plc to pay Venga

the amount it would have paid in circumstance where an endorsement agreement would have

been entered.

Part B
20
Quoted in Irvine v. Talksport [2003] FSR 35 (CA), 60: ‘…although I am relatively keen to endorse products, there is and was in
1999 a price below which I would not consider endorsing the products. This is because I would want it to be known that my
endorsement fee was a low figure. Word would soon get around and it could devalue my image and market value’.
21
Irvine v. Talksport Ltd (Damages) [2002] EWHC 539 (Ch), [2003] EMLR 6,

8
Thomas Vengarbron- Venga can consider protecting the following aspect of the new aftershave:

a) the smell of the aftershave; and

b) the distinctive, red V-shaped bottle.

c) The words ‘Sent by Venga’

The Community Trade Mark (CTM) is a single mark which can be represented graphically 22 and

which can be legally be used within the European Union and the application can be made

through the UK Intellectual Property Office or to the Office for Harmonisation in the Internal

Market (OHIM) in Alicante.

Article 7 of the Regulation elaborates on absolute grounds for refusal of a CTM registration.

The grounds include signs which cannot be represented graphically; signs lacking distinctive

characters; trademark which can deceive public; shape objections; trademarks contrary to

public policy or morality.23

22
Article 4 of the Council Regulation (EC) No 207/2009 of 26 February 2009: A community trade mark may consist of any signs
capable .of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of
goods or of their packaging provided that such are capable of distinguishing the goods or services of one undertaking from
those of other undertakings.

23
Article 7 of Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark
Article 7 of the Regulation - Absolute grounds for refusal
1. The following shall not be registered:
(a) signs which do not conform to the requirements of Article 4;
(b) trademarks which are devoid of any distinctive character;
(c) trademarks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality,
quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the
service, or other characteristics of the goods or service;
(d) trademarks which consist exclusively of signs or indications which have become customary in the current language or
in the bona fide and established practices of the trade;
(e) signs which consist exclusively of:(i) the shape which results from the nature of the goods themselves;(ii) the shape of
goods which is necessary to obtain a technical result;(iii) the shape which gives substantial value to the goods;
(f) trademarks which are contrary to public policy or to accepted principles of morality;
(g) trademarks which are of such a nature as to deceive the public, for instance as to the nature, quality or geographical
origin of the goods or service;

9
Article 4 of the Regulation seems to leave open the possibility that any sign which can be

represented graphically can be registered. However, the decision of the Court of Justice of the

European Union (CJEU) in the case of Dyson24 shows that not all signs may constitute a

trademark. This open-ended definition of registrable signs give rise to question as to whether

marks which cannot be perceived visually such as smell known as ‘olfactory marks’, sounds and

taste can be registered. In various cases, it has been seen that the registration of intangible

signs encounter certain difficulties.

In Sieckmann25 an application was filed in Germany for the registration of a smell. The

application described chemical formula which created the smell and included a sample of the

smell. The dispute as to any of the details provided constituted ‘graphic representation’ was

referred to the European Court of Justice (ECJ). The ECJ stated that the details provided was

inadequate and further elaborated that although a smell cannot be visually perceived, it can be

registered as trademarks if it can be represented graphically – by means of images, lines or

characters. These should be ‘clear, precise, self-contained, easily accessible, intelligible, durable

(h) trademarks which have not been authorised by the competent authorities and are to be refused pursuant to Article
6ter of the Paris Convention for the Protection of Industrial Property, hereinafter referred to as the ‘Paris Convention’;
(i) trademarks which include badges, emblems or escutcheons other than those covered by Article 6ter of the Paris
Convention and which are of particular public interest, unless the consent of the competent authority to their
registration has been given;
(j) trademarks for wines which contain or consist of a geographical indication identifying wines or for spirits
(k) which contain or consist of a geographical indication identifying spirits with respect to such wines or spirits not having
that origin;
2. Paragraph 1 shall apply notwithstanding that the grounds of non-registrability obtain in only part of the Community.
3. Paragraph 1(b), (c) and (d) shall not apply if the trade mark has become distinctive in relation to the goods or services
for which registration is requested in consequence of the use which has been made of it.

24
– Dyson Ltd v. Registrar of Trade Marks – Case C-321/03 [2007] ECR I-687
25
Sieckmann v. Deutsches Patent- und Markenamt Case C-273/00 [ 2002] ECR I- 11737

10
and objective’. However, the application of this test will be difficult to smells, particularly with

the need for the representation to be ‘intelligible.’

26
The OHIM allowed the registration for the ‘smell of new-mown grass’ in respect of tennis

balls. Following the Sieckmann27 the tennis balls registration has lapsed as there is not

sufficient means to represent a smell.

The formula devised in the Sieckmann28 about adequate graphic representation 29 also applies

to other intangible signs such as colors. The ECJ dealt with the question as to whether a single

color can be registered and be graphically represented in the case of Libertel Groep BV v.

Benelux – Merkenbureau30 where an application was made to register a trade mark for the

colour orange. The application contained an orange rectangle and the word ‘orange’ without

any reference with regard to any color code. The application was initially refused on the

ground that the mark was devoid of distinctive character and would not be registered without

proof that it had acquired distinctiveness through use. On appeal the ECJ explained that to be

registrable, a color per se must be represented graphically in a way that is ‘clear, precise, self-

contained, easily accessible, intelligible, durable and objective’. An international recognized

identification code such as the Pantone Classification system can be used to satisfy the

‘objective’ condition. The representation of a color on its own or a description in words is

26
Quoted from Intellectual Property Law, Tim Press, Oxford University Press 2013, P.159
27
Sieckmann v. Deutsches Patent- und Markenamt Case C-273/00 [ 2002] ECR I- 11737
28
Sieckmann v. Deutsches Patent- und Markenamt Case C-273/00 [ 2002] ECR I- 11737
29
Quoted from Sieckmann v. Deutsches Patent- und Markenamt Case C-273/00 [ 2002] ECR I- 11737- ‘…clear, precise, self-
contained, easily accessible, intelligible, durable and objective…’

30
C-104/01 [2003] ECR I-3793

11
inadequate as words are unclear and representation fades with time. A color per se help to

distinguish goods or services of one trader to another and importance must be given not to

unduly restrict the accessibility of colors available for use by all traders. Consequently, the ECJ

held that it will be necessary for an applicant for the registration of a color per se to prove

acquired distinctiveness through use.

A shape mark which has acquired distinctiveness can be registered as per the Regulation.

However, Article 7(1)(e) of the Regulations set ground whereby these signs cannot be

registered as trademarks. In the case of Lego Juris A/S v. OHIM31 it was held that for a shape to

fall within the ground of refusal:

a. ‘the necessary elements of the mark must fulfill a technical function;

b. it does not matter that the technical function could be achieved by a different shape;

c. the essential elements of a mark are its most important elements – and this must be

decided on a case to case basis.’

In the case of Tynant Spring Water Ltd32, an application was made to register a blue bottle of

optical character. Although the application stated the description of the colour ‘cobalt blue’

and thickness of the wall as 3mm 33, the application was refused. This case explains that colours

represented in purely words will be considered as too vague to form a graphical representation.

31
(C-48/09 P) [2010] ETMR 63
32
Ty Nant Spring Water Ltd's Trade Mark Application [2000] RPC 55
33
Quoted from Ty Nant Spring Water Ltd's Trade Mark Application [2000] RPC 55- “The trade mark consists of a blue bottle of
optical characteristics such that, if the wall thickness is 3mm, the bottle has, in air, a dominant wavelength of 472 to 474
nanometres, a purity of 44 to 48%, an optical brightness of 28 to 32%”

12
Consequently, it should be represented as per widely and readily available colour standard.

The shape of the bottle must also be precisely defined to avoid referring to any shape of bottle.

In Nestlé Waters France v. OHIM 34– Case T-305/02, a CTM application for a three-dimensional

shaped bottle was made. The application included a full description of the shape. 35

Albeit, registration was refused as the bottle was considered to be of common shape and was

not distinctive. Nestlé argued that the bottle was distinctive and the CFI explained that the

aspect of distinctiveness should be assessed on the general public perception. The CFI was

satisfied that the bottle differentiated the products from other manufacturers. Thus, this shape

was registrable and it has been noted that stringent test should not be applied to three

dimensional marks rather the conventional registration (graphical representation and not

devoid of distinctive character) should be considered.

Article 8 of the Regulation establishes circumstances where an owner of a registered trademark

may prevent the registration of a later sign. This article states the relative grounds of refusal

for an application and this can be categorized into:

(a) prior registered trademarks - these include identical marks on identical goods; either

marks or goods not identical but there is confusion as to the trade origin; similar marks

with similar goods or dissimilar causing unfair advantage of, or detriment to the mark.
34
Case T-305/02
35
Quoted from Nestlé Waters France v. OHIM– Case T-305/02: “the bottle comprises a main section with, at its base, a recess,
in the shape of a slightly truncated cone with, in its flat section, a stylised star in relief. In the lower part of the main section,
which is nearly cylindrical from bottom to top, there is an initial series of wavy grooves and, in the upper part, which is of
slightly smaller diameter and bobbin-shaped, there are spiralling grooves which form lozenges when seen through the bottle.
The top section, which is the shape of a slightly truncated cone, ends in a cylindrical neck with a blue cap.”

13
 (b) Prior unregistered rights- passing off; copyrights in words, images or shapes. 36

A trade mark will not be registered if it is ‘identical’. Marks are considered to be identical if the

differences are so insignificant that they will go unnoticed 37. There are blocking powers of prior

marks where there is confusion. According to the ECJ in Sabel v. Puma38, confusion would be

one where the confusion is concerned to the trade origin of the goods either that the goods

come from the same manufacturer or from economically linked agreements. Therefore, a

36
Article 8- Relative grounds for refusal
1. Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered: (a) if it is
identical with the earlier trade mark and the goods or services for which registration is applied for are identical with the goods
or services for which the earlier trade mark is protected; (b) if because of its identity with, or similarity to, the earlier trade mark
and the identity or similarity of the goods or
services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the
earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.
2. For the purposes of paragraph 1, ‘earlier trade marks’ means: (a) trade marks of the following kinds with a date of application
for registration which is earlier than the date of application for registration of the Community trade mark, taking account,
where appropriate, of the priorities
claimed in respect of those trade marks:(i) Community trade marks; (ii) trade marks registered in a Member State, or, in the
case of Belgium, the Netherlands or Luxembourg, at the Benelux Office for Intellectual Property; (iii) trade marks registered
under international arrangements
which have effect in a Member State; (iv) trade marks registered under international arrangements which have effect in the
Community; (b) applications for the trade marks referred to in subparagraph (a), subject to their registration; (c) trade marks
which, on the date of application for registration of the Community trade mark, or, where appropriate, of the priority claimed in
respect of the application for registration of the Community trade mark, are well known in a Member State, in the sense in
which the words ‘well known’ are used in Article 6bis of the Paris
Convention.
3. Upon opposition by the proprietor of the trade mark, a trade mark shall not be registered where an agent or representative
of the proprietor of the trade mark applies for registration thereof in his own name without the proprietor's consent, unless the
agent or representative justifies his action.
4. Upon opposition by the proprietor of a non-registered trade mark or of another sign used in the course of trade of more than
mere local significance, the trade mark applied for shall not be registered where and to the extent that, pursuant to the
Community legislation or the law of the Member State governing that sign: (a) rights to that sign were acquired prior to the
date of application for registration of the Community trade mark, or the date of the priority claimed for the application for
registration of the Community trade mark; (b) that sign confers on its proprietor the right to pro prohibit the use of a
subsequent trade mark.
5. Furthermore, upon opposition by the proprietor of an earlier trade mark within the meaning of paragraph 2, the trade mark
applied for shall not be registered where it is identical with, or similar to, the earlier trade mark and is to be registered for
goods or services which are not similar to those for which the earlier trade mark is registered, where, in the case of an earlier
Community trade mark, the trade mark has a reputation in the Community and, in the case of an earlier national trade mark,
the trade mark has a reputation in the Member State concerned and where the use without due cause of the trade mark
applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade
mark.
37
S.A Societe LTJ Diffusion v Sadas Vertbaudet SA [2003]
38
C-251/95 [1997]

14
single global test as per the 11 th recital of the Directive must be done. Another important type

of harm which is covered by Article 8 is unfair advantage.

Going back to Venga’s case, the potential for registration are as follows:

 Venga being a legal person has the right to apply for the registration of the trademarks

as per Article 5 of the Regulation. The application must be made in good faith- Venga

must use the trade mark and there must not be any third party right to the mark. 39

 The Smell of the new aftershave - with reference to Sieckmann40, it is evident that the

smell cannot be graphically represented and consequently the smell cannot be

registered.

 Since the distinctive, red, V-shape bottle is not contrary to public policy or public moral

and there is no potential to cause deception to the public the application can be made.

However, with regards to the description of the distinctive, red, V –Shape Bottle, due

consideration must be given. The application must be made in good faith- Venga must

use the trade mark and there must not be any third party right to the mark. 41

As referred in the case of Sieckmann42, the graphical representation of the color must be

‘clear, precise, self-contained, easily accessible, intelligible, durable and objective’. The

39
Ferrero SpA’s Trade Marks [2004] RPC 29
40
Sieckmann v. Deutsches Patent- und Markenamt Case C-273/00 [ 2002] ECR I- 11737
41
Ferrero SpA’s Trade Marks [2004] RPC 29
42
Sieckmann v. Deutsches Patent- und Markenamt Case C-273/00 [ 2002] ECR I- 11737

15
 Pantone Classification system can be used to satisfy the ‘objective’ condition. 43 To be

registered per se the proposed red colour must be acquired distinctiveness through use.

As prescribed in the Nestlé Waters France v. OHIM44, the application for the red V-

shaped bottle must include full description of the shape of the bottle and the standard

set for the red colour. In addition, the V-shaped bottle must differentiate Venga’s

product from other manufacturers.

 The words ‘Sent by Venga’- Referring to Article 4 of the Regulation, the words’ Sent by

Venga’ can be registered as a trade mark as there is no ground for refusal for this sign.

The word ‘Sent by Venga’ is neither contrary to public moral or policy nor causing

deception to the public.

Based on the assumption that no prior mark similar to that proposed by Venga has been

registered earlier, no ground for refusal under Article 8 of the Regulation is present in

this case.

Upon registration of the trademarks, these marks will consist of Venga’s personal rights.

These registered rights will have two distinct powers: firstly, a defensive one- the power

to block registrations of later marks; secondly, an offensive power- to prevent the use of

the marks by others.

43
Libertel Groep BV v. Benelux – Merkenbureau C-104/01 [2003] ECR I-3793
44
Case T-305/02

16
Bibliography

Tanya Aplin & Jennifer Davis, Intellectual Property Law: Text, Cases and Materials, 2 nd

Edition, (2013, Oxford University Press)

Tim Press, Intellectual Property Law, Impression 1, (2013, Oxford University Press)

Ray August, Don Mayer, Michael Bixby, International Business Law: Text, Cases

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