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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 off|passing <strike>wind</strike>off]]. | 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 off|passing <strike>wind</strike>off]]. | ||
In {{cite|Erven Warnink BV|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”,<ref>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. I rather like the sound of a pint of Keeling’s Old English Advocate, and sorely regret there isn’t one to be had.</ref> only using normal eggs and Cyprus wine. Now if you are like me you will have just executed a double take, for if common sense and logic was the sole determinant of the market’s direction, surely Mr Townend would, now, be the sort of fellow whose fate [[survivor bias]] fails to take account, and the world would be still slightly muddled about the limits of a [[passing off]] action. | In {{cite|Erven Warnink BV|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”,<ref>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. I rather like the sound of a pint of Keeling’s Old English Advocate, and sorely regret there isn’t one to be had.</ref> only using normal eggs and Cyprus wine. Now if you are like me you will have just executed a double take, for if common sense and logic was the sole determinant of the market’s direction, surely Mr Townend would, now, be the sort of fellow whose fate [[survivor bias]] fails to take account, and the world would be still slightly muddled about the limits of a [[passing off]] action. | ||
But no: seemingly the people of East Riding acquired a taste Townend’s sludge, and this came to the attention of Warnink who owned the [[Advoccat]] trademark. He took to the courts and eventually found Lord Diplock in the Court of Appeal, who, in finding for the Dutchman, 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]]''<ref>i.e., ''likely''.</ref> to injure the business or goodwill of another merchant, and (5) in fact actually does so. | But no: seemingly the people of East Riding acquired a taste Townend’s sludge, and this came to the attention of Warnink who owned the [[Advoccat]] trademark. He took to the courts and eventually found Lord Diplock in the Court of Appeal, who, in finding for the Dutchman, 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]]''<ref>i.e., ''likely''.</ref> to injure the business or goodwill of another merchant, and (5) in fact actually does so. | ||