Reckitt & Colman Products Ltd. v. Borden Inc. and Others

Reckitt & Colman
Products Ltd. v. Borden

Inc. and Others
5th semester
B.B.A.L.L.B.
‘A’
Aporva Shekhar
1882021
Facts
 In 1955 a company, Edward Hack Ltd., started to market lemon juice in the
United Kingdom in plastic squeeze packs coloured and shaped like lemons.
 Another company, Coldcrops Ltd., also commenced marketing lemon juice in
similar containers. An action for passingoff ensued but never came to trial since
both businesses were acquired by the plaintiff, Reckitt & Colman Products Ltd.,
who then started to market their lemon juice, under the brand name Jif in the
United Kingdom.
 In 1975, the defendants, Borden Inc. and its Belgian subsidiary, started to market
'ReaLemon' lemon juice in bottles in the United Kingdom. By the end of 1980,
their sales of bottled 'ReaLemon' accounted for about 25% of the total United
Kingdom sales of lemon juice.
 The defendants' presence in the United Kingdom market appeared to have an
adverse effect on the sales of Jif lemon juice in plastic containers.
 The plaintiff then launched bottled Jif lemon juice in an attempt to dominate the
market.
 The defendants then decided to sell their lemon juice in plastic squeeze containers
in the United Kingdom to compete directly with Jif lemons.
 In summer 1985, the plaintiff noticed that the defendants were offering their
lemon juice in the Mark I get-up to certain supermarkets. They protested that the
public sale by the defendants of their lemon juice in that get-up would constitute
actionable passing-off.
 The defendants later devised the Mark II and Mark III get-up and gave the
required notice and samples. In May 1986, the plaintiff commenced a second
action in relation to the Mark II and Mark III versions and were granted
interlocutory injunctions pending trial by the Court of Appeal.
Issues
 Do the common people associate the lemon squeeze product only with the
Plaintiff’s brand?
 Does the suggested model of the Defendant’s product that is to be sold would
amount to representation that indicates its the “Jif” lemon product?
 Will the common people be mislead into buying the defendant’s product
believing it to be “Jif” juice if the defendant’s are not stopped from selling the
product?
Judgement
It was decided that the defendant did commit the act of passing as they were selling
the lemon juice in lemon shaped containers and a permanent injuction was issued to
stop them from selling lemon juice in such containers.At the Court of first instance,
Walton J. held that the use by the defendants of any of the three proposed versions of
the get-up (namely, Mark I, II or III) would constitute passing-off. He, therefore,
granted permanent injunctions against the defendants in both actions restraining them
from selling lemon juice "either in packaging corresponding to the Mark I, Mark II or
Mark III versions, or in any container so nearly resembling the [plaintiff's] Jif
lemon-shaped container as to be likely to deceive without making it clear to the
ultimate purchaser that it is not of the [plaintiff's] manufacture." The learned judge
also found as a fact that the defendants had acted with fraudulent intent in passing-off
their goods as those of the plaintiff's. The Court of Appeal reversed the trial judge's
findings of fraud but affirmed his decision that the defendants' conduct would amount
to actionable passing-off. The House of Lords dismissed the defendants' appeal and
held that the defendants' conduct would constitute actionable passing-off. Lord Oliver
and Lord Jauncey delivered judgments to which Lord Bridge, Lord Brandon and Lord
Goff agreed.
Critical Analysis
The basic principle of the law of passing-off can be expressed as follows:- "that
nobody has any right to represent his goods as the goods of somebody else"' or that
"no man may pass off his goods as those of another."'The tort of passing-off can
basically take three different forms. First, there is passing-off as to the origin of the
product or services. Second, passing-off can also take the form of deception as to the
quality of the plaintiff's own products. Third, there are the cases on shared goodwill
which involve deception in relation to a class of products manufactured not by a
single manufacturer, but by a group of manufacturers. The case of Reckitt & Colman
Products Ltd. v. Borden is concerned with the first form, namely, passing-off which
involves deception as to the origin of a product, wherein the goodwill claimed was in
the get-up as a badge of origin.The whole basis of the tort of passing-off is the
protection of the goodwill in a trader's goods or services. In order to succeed in an
action for passing-off the plaintiff must establish a goodwill within jurisdiction'8 and
goodwill has "no independent existence apart from the business to which it is
attached."' Goodwill has been defined as "the attractive force which brings in custom"
' and can subsist in a name, mark, label, logo or in the get-up of a product. Passing-off
does not protect the name, mark or the get-up of a product per se since there is no
"property" or monopoly at common law in the latter; but, rather, the tort of passing off
protects the goodwill which is proven to subsist in the relevant indicia of origin.
To succeed in proving goodwill, it is not however necessary that the public be aware
of the actual identity of the plaintiff; as Lord Oliver puts it:- "Whether the public is
aware of the plaintiff's identity as the manufacturer or supplier of the goods or
services is immaterial, as long as they are identified with a particular source which is
in fact the plaintiff." Thus, a competitor may copy the get-up of a product of a rival,
but the line is drawn for the purposes of the tort of passing-off where the copying
gives rise to a misrepresentation which is likely to deceive members of the public as
to the origin of the product in issue.

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