Hodgkinson & Corby Ltd v Wards Mobility Services Ltd
Copying the appearance of a product is not passing off unless the appearance has become associated with the claimant and the defendant misrepresents that its product is the claimant's.
Facts
Hodgkinson & Corby made a cushion for preventing pressure sores, called the Roho, which had a distinctive appearance. Wards Mobility made a very similar cushion, called the Flotair, which copied its appearance, but sold it under its own name. Hodgkinson & Corby sued for passing off.
Legal principle
Jacob J held that there was no passing off. He said that there is no tort of copying, and no tort of taking a man's market or customers, and that the claimant must show a misrepresentation. The purchasers of the cushions were medical professionals who would know that the Flotair was a different product, because it was sold under a different name, so there was no misrepresentation. The appearance of the Roho was not, on its own, a badge of origin for the claimant's products.
Related cases on passing off
- AG Spalding & Bros v AW Gamage Ltd (1915) 32 RPC 273
- British Telecommunications plc v One in a Million Ltd [1999] 1 WLR 903
- Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1981] 1 WLR 193
- Chocosuisse Union des Fabricants Suisses de Chocolat v Cadbury Ltd [1999] RPC 826
- Diageo North America Inc v Intercontinental Brands (ICB) Ltd (Vodkat) [2010] EWCA Civ 920, [2011] 1 All ER 242
- Erven Warnink BV v J Townend & Sons (Hull) Ltd (Advocaat) [1979] AC 731
- Fenty v Arcadia Group Brands Ltd (Rihanna) [2015] EWCA Civ 3, [2015] 1 WLR 3291
- Harrods Ltd v Harrodian School Ltd [1996] RPC 697
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