Case No. IP-2016-000182

1.Lord Diplock described passing off as the “most protean” of the wrongs actionable in English law at the suit of traders who suffer loss of business or goodwill through unfair trading by others (Erven Warnink Besloten Vennootschap v J. Townend & Sons (Hull) Ltd [1979] A.C. 731, at 740). Since judgments of Danckwerts J in 1959 and 1960 the flexible boundaries of the tort have come to embrace what is sometimes called ‘extended passing off’. Those judgments were J. Bollinger v Costa Brava Wine Co Ltd [1960] 1 Ch. 262, in which preliminary points of law were decided, and J. Bollinger v Costa Brava Wine Co Ltd (No. 2) [1961] 1 W.L.R. 277, the substantive trial.2.Warnink remains the most authoritative ruling on extended passing off and is the source of that name, see p.739.3.In the present action the claimant (“MML”) seeks to push the boundaries a little further. It was argued on behalf of MML that the limits of passing off contain a form which, to date, the courts have not had occasion to recognise explicitly.4.Michael Silverleaf QC and Jacqueline Reid appeared for MML, Simon Malynicz QC and Tim Austen for the defendants.