Odger's English Common Law

" PASSING-OFF." 621
Let us assume that the defendant has used a label which in its general
appearance greatly resembles the plaintiff's label, although a closer
examination will disclose many minute differences. The purchaser of the
package does not take, the two labels and compare them ; he never has
them both before him at the same time. He sees one label, and from its
general appearance concludes that the goods inside the package were
manufactured by the plaintiff. He probably would not have arrived at
this erroneous conclusion if he had had both labels before him for com-
parison. And even if the first purchaser is not deceived by the resemblance,
purchasers from him may be deceived. Hence persons conversant with the
particular trade will be allowed to state whether in their opinion the resem-
blance between the two labels is so close as to be likely to cause one to be
mistaken for the other. 1 But their opinions are not conclusive : the judge
must look at both labels and then decide the question for himself. 2
This action of passing-off "was the creation of the Court of
Chancery. At common law there was, of course, the action
of deceit, by means of which damages could be recovered
by any one who was induced to purchase an article which he
did not want because it was a colourable imitation of the
article which he did want. In such an action, however, the
purchaser would have to establish that the defendant had
contrived the resemblance in order to deceive the public.
He would also have to show damage. Again, such a pur-
chaser, on discovering the deception which had been practised
upon him, could rescind the contract, return to the defendant
the inferior article which had been foisted upon him and sue
the defendant for the price as money received by the defendant
to the use of the plaintiff. But these were the remedies of
the individual members of the public who had been actually
deceived
; there was no remedy at common law for the
manufacturer or owner of the goods which had been thus
colourably imitated. Yet clearly his custom would be to
some extent diminished, and the reputation of his goods
possibly impaired. On the other hand, in an action for
" passing-off," the person whose wares, wrappers or labels
are imitated takes up arms nominally to protect the public
1 Johnston v. Orr Ewing 8; Co. (1882), 7 App. Cas. 219. And see North Cheshire,
Ice Brewery Co v. Manchester Brewery Co., [1899] A. C. 83 ; Paytonv. Snelling
(1900), 17 E. P. C. 628, 635.
2 But see London General Omnibus Co., Ltd. v. Lavett, [1901] 1 Ch. 135.
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