For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Saturday, 5 June 2010

It's official: words can have more than one meaning!

Although this isn't an intellectual property matter as such, this decision has some bearing on the way IP owners can defend their interests in the UK, for example if someone makes defamatory comments about their branded goods. The legal topic, "malicious falsehood", was once called "slander of goods" or "trade libel", which gives you an idea of how claimants viewed it.

The case in question involves a generic product -- a non-sugar sweetener known as aspartame. Its name is Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] EWCA Civ 609 and it's a ruling of the Court of Appeal for England and Wales (Sedley LJ, Rimer LJ and Sir Scott Baker) last Wednesday, 2 June.

Asda (the British embodiment of Walmart) sold its own health food products, some of which were labelled with appealing little phrases like "No hidden nasties" and "No artificial colours or flavours and no aspartame". Ajinomoto -- a major manufacturer and supplier of aspartame -- sued for malicious falsehood. At trial of the meaning of the words as a preliminary issue, Mr Justice Tugendhat held that (i) a substantial number of customers would understand the words on the labels to mean that there was a risk that aspartame was harmful or unhealthy but that (ii) a substantial number of different customers would view the words as an innocent statement that those foods were for customers who found aspartame objectionable.

So far, so good. But it has long been considered the case that, in an action for malicious falsehood, the court has to ascribe a single meaning to the words. As can be seen, this is not easy once you've found as a fact that two different groups of consumers would come away with divergent notions of what the words meant. In this case the trial judge applied the single meaning rule, which he took to require that he should not select one meaning which was pejorative where other non-defamatory meanings were available. Accordingly, he took the meaning to be the second of his two meanings. Ajinomoto appealed on the basis that, if this finding were upheld, it would automatically lose its claim. But, said Ajinomoto, the single meaning rule didn't really exist in actions for malicious falsehood.

The Court of Appeal (for whom Lord Justice Sedley delivered the judgment) agreed with Ajinomoto and allowed its appeal. The single meaning rule, said the court, was anomalous, otiose and unjust. As the trial judge said -- and this was unchallenged -- the meanings which reasonable consumers might put on Asda's health-food packaging included both damaging and innocuous ones. Why, then shouldn't Ajinomoto be entitled to prove malice in relation to the damaging meaning alone and, having done so, then press for damages accordingly. The presumption that words could only bear a single meaning was arbitrary and contrary to the trial court's findings.

Says the IPKat, this seems entirely fair -- and Lord Justice Jacob thinks so too (or did so when he was a trial judge, at any rate). At para.15 of his judgment Sedley LJ quotes him:

"In Vodafone v Orange [1997] FSR 34 Jacob J, invited by consent to find the single meaning of words sued on for malicious falsehood, said:
"As a comparative stranger to this branch of the law I find the "one meaning rule" strange, particularly for malicious falsehood. Without authority, I should have thought it would be enough to satisfy the criterion of falsity for the plaintiff to prove that the defendant made a statement which was false to a substantial number of people. That, for instance, is the position in passing off (a tort also concerned with false representations): for that tort it is enough to show that the representation fools some of the people, even if not most of them"."
Merpel adds, not everyone likes Lord Justice Sedley's forays into intellectual property and related laws -- but "Deadly Sedley" seems to have done a good job here, with some solid historical analysis too.

Cooking with aspartame here

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