Intellectual propert law Essay Example | Topics and Well Written Essays - 4000 words

Intellectual propert law - Essay Example Moreover, Betty’s business was apparently called â€Å"Betty’s† from the period spanning 1986 to 1994. However, the name â€Å"Betty’s† was never officially trademarked, at least the facts do not indicate that it was. If the name was trademarked, then obviously Betty would have a stronger case. However, Betty might have a cause of action for passing off. Passing off, traditionally a tort that referred to attempting to represent one’s goods as the goods of somebody else, has the modern definition of using a person’s goodwill and reputation in an attempt to benefit oneself, and, in the process, injuring the original person’s good name, reputation and connections (Taittinger and others v. Allbev Ltd. and others [1994] 4 All ER 75). There are five elements in the tort of passing off, and they are â€Å"1. A misrepresentation 2. Made by a trader in the course of trade, 3. To prospective customers of his or ultimate consumers of good s or services supplied by him 4. Which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence and 5. Which causes actual damage to a business of goodwill of the trade by whom the action is brought or will probably do so (Erven Warnick BV v. J Townend & Sons (Hull) Ltd. [1979] 2 All ER 927). In examining these elements, it is unsure whether Betty can prevail on the tort of passing off. The first element is that there must be a misrepresentation. Calling her company â€Å"Betty’s Produce,† when Jenny had previously worked for Betty for a long period of time, and Betty’s business was known as â€Å"Betty’s† for a number of years would certainly seem as if Jenny is misrepresenting her own produce as Betty’s. Jenny was no doubt highly associated with Betty in the mind of the consumers and the people to whom Betty catered, so those people probably would assume that Jenny w as still with Betty, and that Jenny’s produce was Betty’s produce. Jenny would be using Betty’s name in the course of trade and to prospective customers, and these same customers were also Betty’s customers, so those elements are satisfied as well. Whether it was calculated to damage the goodwill of Betty is a question for which there is no clear answer. Certainly it seems that Jenny was attempting to capitalize on Betty’s goodwill and reputation, but whether or not she wanted to injure Betty is questionable. However, as long as damage to Jenny’s reputation is reasonably foreseeable, this element is satisfied as well. Betty worked hard to establish a firm reputation for her products. Jenny’s products might not have the same standard. If Jenny’s products are not the same standard as Betty’s products, then Jenny would be damaging Betty’s reputation. â€Å"a misrepresentation by B that his inferior goods are of a su perior quality, which is that of A’s goods, whereby people buy B’s goods instead of A’s, is actionable† (Reckitt and Colman Products Ltd. v Borden Inc. and Others, [1990] 1 All ER 873). Jenny was clearly trying to represent her products as Betty’s products, in an effort to get these restaurants to buy her products instead of Betty’s products, so this element is satisfied as well. As to the final element, that the passing off causes actual damage to Betty’s reputation, actionable damage can be that which is gradual depreciation to the reputation that Betty