The first talk came from Ben Allgrove, a partner at Baker & McKenzie and a contributor to JIPLP. Ben's main message revolved around two propositions; (i) that the tort of passing off is flexible and that it has evolved over time; an evolution that is still progressing to this day, and (ii) in the core area of practice there is no real difference between passing off and unfair competition.
The point of an evolving concept was illustrated further by reference to the leading case of Cadbury Schweppes Pty Ltd v Pub Squash Co. Pty Ltd  UKPC 30, which showed early on that it was acknowledged that the concept of passing off could even extend to advertising campaigns. Cadbury Schweppes launched a lemon drink in Australia which was novel in that it was specifically aimed at the adult male market. Pub Squash Co copied the drink itself and the general theme and tone of the marketing campaign. Even though Cadbury Schweppes failed to establish passing off, there was at least some acknowledgment that passing off could happen in advertising.
Extended passing off
'... a doctrine which has been developing in U.S. trademark cases since the 1970s, which allows for a finding of liability where a plaintiff can demonstrate that a consumer was confused by a defendant’s conduct at the time of interest in a product or service, even if that initial confusion is corrected by the time of purchase'
2 The tort of passing off has now been extended to the reputation and goodwill held in products via quality association. The key components come from the ‘Advocaat’ case (Erven Warnink B.V. v J. Townend & Sons (Hull) Ltd  AC 731) Lord Diplock established five criteria for a claim of extended passing off. There must be:
2. by a trader in the course of trade
3. to prospective customers of his or ultimate consumers of goods or services supplied by him
4. which is calculated to injure the business or goodwill of another trader and
5. which causes actual damage to the business or goodwill of the trader bringing the action.
More recently in the long-awaited appeal in Fage UK Ltd & Another v Chobani UK Ltd & Another  EWCA Civ 5 (see IPKat overview here) the argument focused on whether Chobani could use the term ‘Greek yoghurt' to describe their yoghurt. The Court of Appeal, upholding the trial judgment, sided with Fage in finding that 'Greek yoghurt' had to be made in Greece.
German unfair competition law
At first instance, the trade association argued that the brewing company was deceiving consumers by not indicating that this specific beer was not brewed in Warsteiner, which was found to be misleading. The brewing company then put a small indication on the front of the bottle, which was deemed to be too small. Finally the Supreme Court referred questions to the CJEU to see whether the directive could take influence from case law on geographical indications. In its final decision the Supreme Court made a complete turnaround on its opinion regarding the labelling and stated, that if the consumer is interested where the beer is brewed, the consumer will look on the front and the back of the bottle.
Section 4 of the Act gives examples of unfair commercial practices; however, the list is not final. Section 4(9) is the closest to passing off in UK law in which it states, ‘Unfairness shall have occurred in particular where a person offers goods or services that are replicas of goods or services of a competitor if he
(a) causes avoidable deception of the purchaser regarding their commercial origin;
(b) unreasonably exploits or impairs the assessment of the replicated goods or services; or
(c) dishonestly obtained the knowledge or documents needed for the replicas.’
There seem to be a variety of similarities between the two doctrines of passing off and unfair competition. However, some have suggested that the UK tort of passing off is unfair competition in all but name.