Advocaat

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Not a lawyer, even in Holland, unless she has got so far through the booze cabinet that all is left is egg brandy.

Advocaat is a dun-coloured dutch liqueur made from a blend of hen egg yolks, aromatic spirits, sugar, and brandy. You might think a mildly alcoholic drink that looked like puss would be something you’d try once, in the nineteen seventies, in Amsterdam, and would now exist only in nostalgia shows, but somehow it has survived and you can buy it, even in Tesco, to this very day.

Once upon a time — in fairness, it was the seventies — it was so popular in Yorkshire that it generated litigation so powerful that it developed the modern law of passing windoff.

In Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731, Townend, from Hull, basically ripped off Advocaat creating a tipple he called “Keeling’s Old English Advocaat”, only using normal eggs and wine from Cyprus.

How something called “advocaat” counts as “Old English” is a fit subject for a short debate. If he’d called it “Keeling’s Old English Advocate” (a) he might have got away with it, and (b) might have shifted a few units to people mistaking it for some kind of microbrewed beer. The JC rather likes the sound of a pint of Keeling’s Old English Advocate, and sorely regret there isn’t one to be had.

In any case, had common sense and logic driven the market — and it no more did then that it does now — Mr. Townend’s fate would be of the kind survivor bias fails to take account, he would remain in anonymity and the legal world would still be somewhat muddled about the limits of a passing off action.

But, seemingly, the people of East Riding acquired a taste for Mr. Townend’s sludge.

This came to the attention of a Mr. Warnink, of Holland, who owned the Advocaat trademark. Mr Warnink took to the English courts, eventually finding his way to Lord Diplock in the Court of Appeal who ruled that, while it was close, there was no trademark infringement as such. Undeterred, Mr. Warnink thus brought his action for the hitherto obscure common law tort of “passing off”, and won.

In finding for the Dutchman, the court established five criteria for a claim of “extended” passing off: there must be (1) a misrepresentation, made (2) by a trader in the course of trade, (3) to prospective consumers of his goods or services, which is both (4) calculated to injure the business or goodwill of another merchant, and (5) in fact actually does so.

This has subsequently been simplified a bit, but not in amusing circumstances, so if you want to know more about that, you’ll have to Google it. Oh, all right then, it was Reckitt & Colman Products Ltd v Borden [1990] 1 All ER 893.

See also

• Avocat à la cour