tag:blogger.com,1999:blog-5574479.post2219412374483944414..comments2024-03-29T10:54:23.099+00:00Comments on The IPKat: When someone has designs on your domain name -- literallyVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5574479.post-91886701721333945782013-08-13T20:29:59.874+01:002013-08-13T20:29:59.874+01:00Sorry Merpel McKitten, but in citing HFC Bank v ...Sorry Merpel McKitten, but in citing HFC Bank v Midland Bank ("HSBC") [2000] FSR 176 you are confusing the issue of whether the mere fact that there is confusion necessarily means that there is misrepresentation (it does not necessarily follow and in the unusual facts of the HSBC case, the court concluded there was not) and whether or not INTENTION (the word that was used) is an ingredient of the tort, which it most definitely under the modern law is not.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-81189061089563780012013-08-09T14:58:53.072+01:002013-08-09T14:58:53.072+01:00Come off it, anonymous! Intention is presumed wher...Come off it, anonymous! Intention is presumed where confusion is the natural and probable consequence of a person's acts. Thus Lord Diplock in Erven Warnink v Townend [1979] AC 731, speaks of a misrepresentation "which is calculated to injure the business or goodwill of another trader". Nobody "calculates" anything -- Lord Diplock explains he means "in the sense that this is a reasonably foreseeable consequence".<br /><br />But confusion by itself will not support an action for passing off: HFC Bank v Midland Bank ("HSBC") [2000] FSR 176Merpel McKittennoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-21486320854478949742013-08-09T13:00:55.942+01:002013-08-09T13:00:55.942+01:00"Merpel notes that in England, regarding the ...<i>"Merpel notes that in England, regarding the tort of passing off, in the absence of an intention to deceive or mislead, the mere act of confusing the public is not actionable." </i><br /><br />Oh dear. I think Merpel needs to do some further reading on the English law of passing off. <br /><br />I suggest Merpel starts with the judgment of Millet L.J. in Harrods Limited v Harrodian School Limited [1996] R.P.C. 697 which includes the following passage:<br /><br /><i>“Deception is the gist of the tort of passing off, but it is not necessary for a plaintiff to establish that the defendant consciously intended to deceive the public if that is the probable result of his conduct. Nevertheless, the question why the defendant chose to adopt a particular name or get up is always highly relevant. It is “a question which falls to be asked and answered”: see Sodastream Ltd. v. Thorn Cascade Co. Ltd. [1982] R.P.C. 459 at page 466 per Kerr L. J. If it is shown that the defendant deliberately sought to take the benefit of the plaintiff's goodwill for himself, the court will not “be astute to say that he cannot succeed in doing that which he is straining every nerve to do”: see Slazenger & Sons v. Feltham & Co. (1889) 6 R.P.C. 531 at page 538 per Lindley L. J.”</i><br /><br />Anonymousnoreply@blogger.com