The Court of Appeal of England and Wales in Chocosuisse Union Des Fabricants Suisses upheld Justice Laddie’s loosened requirement for De Chocolat v Cadbury Ltd distinctiveness that extended passing off should be found for descriptive term if it is “a used in relation to a reasonably identifiable group of products which have a perceived distinctive quality”. Justice Laddie’s requirement of identifiable group” is incompatible with the “reasonably traditional requirements of and distinctive qualities” as required by Erven “recognisable Since extended passing off protects a class of traders and not just one, it is Warnick. important to have distinct characteristics required for goodwill, otherwise it may be difficult for future courts to determine what the protected products are and those who fall within the class. The product ADVOCAAT in was protected because it had distinctive Erven Warnick requirements like hen’s egg, sugar and spirit, similarly was protected because ‘Champagne’ it referred to a specific region in France where it was produced. These distinct characteristics could only apply to clearly circumscribed subset of products. Whereas does not even specify the type of grape that should be used in production, “Erewine” resulting in a category that is not sufficiently distinct and cannot be sufficiently recognized. The Appellant has not demonstrated that because of the reputation of “Erewine”, there is a goodwill attached to the name A successful claim of passing off can only be made to the extent that the products are distinguishable in a sufficient and effective manner. Therefore, due to the generality of the requirements for it does not specify a unified approach beyond the need for “Erewine” – double fermentation, does not specify what type of grape should be used, provides that alcohol content could range all the way from 5 to 14 percent, and does not specify in what area of Erewhon can be made it lacks the recognizable qualities that goodwill “Erewine” – can be attached to. The Appellant has failed to show that he, as a member of the class of is “Erewine”, the owner of goodwill in Erewhon which is of substantial value
The Court of Appeal of England and Wales in Chocosuisse Union Des Fabricants Suisses De Chocolat v Cadbury Ltd upheld Justice Laddie’s loosened requirement for distinctiveness that extended passing off should be found for “a descriptive term if it is used in relation to a reasonably identifiable group of products which have a perceived distinctive quality”. Justice Laddie’s requirement of “reasonably identifiable group” is incompatible with the traditional requirements of “recognisable and distinctive qualities” as required by Erven Warnick. Since extended passing off protects a class of traders and not just one, it is important to have distinct characteristics required for goodwill, otherwise it may be difficult for future courts to determine what the protected products are and those who fall within the class. The product ADVOCAAT in Erven Warnick was protected because it had distinctive requirements like hen’s egg, sugar and spirit, similarly ‘Champagne’ was protected because it referred to a specific region in France where it was produced. These distinct characteristics could only apply to clearly circumscribed subset of products. Whereas “Erewine” does not even specify the type of grape that should be used in production, resulting in a category that is not sufficiently distinct and cannot be sufficiently recognized. The Appellant has not demonstrated that because of the reputation of “Erewine”, there is a goodwill attached to the name A successful claim of passing off can only be made to the extent that the products are distinguishable in a sufficient and effective manner. Therefore, due to the generality of the requirements for “Erewine” – it does not specify a unified approach beyond the need for double fermentation, does not specify what type of grape should be used, provides that alcohol content could range all the way from 5 to 14 percent, and does not specify in what area of Erewhon “Erewine” can be made – it lacks the recognizable qualities that goodwill can be attached to. The Appellant has failed to show that he, as a member of the class of “Erewine”, is the owner of goodwill in Erewhon which is of substantial value
carnelian_-_oxford_ip_-_respondent_submissions_final_.docx