As regards the first ground, Pangyrus relied on the common-law tort of passing off, in that, together with Future Factory, Pangyrus created the goodwill in COLOURBLIND and that RSVP had misrepresented its product by selling it under the same mark, threatening to cause real damage. Regarding the passing-off point, a good place to start is the dictum of Mr Justice Arnold in Och-Ziff Management Europe Ltd & Another v Och Capital LLP & Another  EWHC 2599 (Ch), that
“the basis of passing-off is a misrepresentation causing damage to the claimant’s goodwill and there are few a priori limits on what the misrepresentation may be or how the damage may arise: the case in which the defendant’s goods are sold as and for the goods of the claimant is now recognised as no more than a special instance of a more general rule”.
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