Reckitt & Colman Products Ltd. v. Borden Inc

Yes. Their glass jar and labelling passes off yheir product as Mocconna. Passing off is a wrong, a common law tort which protects the goodwill of a trader from misrepresentation. Misleading the public into believing falsely, that the brand being projected was the same as a well known brand is a wrong and is known as the tort of "passing off".


The basis of passing- off action [is] a false representation by the defendant, it must be proved in each case as a fact that the false representation was made. It may, of course, have been made in express words, but cases of express misrepresentation of this sort are rare. The more common case is where the representation is implied in the use of imitation of a mark, trade name, or get up with which the goods of another are associated in the minds of the public. In such cases the point to be decided is whether, having regard to all the circumstances of the case, the use by the defendant in connection with the goods of the mark name or get-up in question impliedly represents such goods to be the goods of the plaintiff, or the goods of the plaintiff of a particular class or quality, or, as it is sometimes put, whether the defendant's use of the mark, name or get-up is calculated to deceive. It would, however, be impossible to enumerate or classify all the possible ways in which a man may make a false representation relied on Lord Parker in Spading vs. Gamage (1915).


In the case of Reckitt & Colman Products Ltd. v. Borden Inc. is popularly known as the Jif Lemon case. The judgment in this case finally formulated three basic principles of the tort of passing off. Walton J., observed that a careful shopper might be able to distinguish between the different brands, but, to quote him; "the slightest peradventure that the effect of the introduction of any of the defendant's lemons on to the market would be bound to result in many housewives purchasing them in the belief that they were purchasing the well known and liked Jif brand.



In the case above, Moconna is a well known coffee brand in Australia and Vittoria also produces coffee. Since Maconna had already establish their name in the industry, people will likely be mistaken just by looking at the jar glass and labelling. A person may believe that they are purchasing Maconna where in fact it was Vittoria coffee which they purchase is a violation under the torts law. Maconna have already build a name and reputation in the industry, therefore there is a misreprestation on the part of Vittoria for creating such label and putting it in an almost similar glass jar, which may cause damage to Maconna as the consumers will more likely expect something from what they purchase.


Explanation:
reference:



Spading vs. Gamage, 1915

Reckitt & Colman Products Ltd. v. Borden Inc


Hello student, hope this helps

Question a
Copyright exists in using words as a phrase if the work is an original literary, dramatic, musical, or artistic work under the Copyright Act of 1990 (Cth). In this instance, "Shake it Off" would be considered an original literary work because it is conveyed in words that maximize its artistic value. The phrase "Shake it Off" is also expressive in conveying the song's message and intent, and its use in no way detracts from the work's originality. In addition, because the phrase "Shake it Off" was used in a Taylor Swift song, it falls under the definition of "literary work" in the Copyright Act of 1990 (Cth). Copyright, therefore, exists if the phrase "Shake it Off" is included in Joan's book, as it is a literary work.
Question b
The Copyright Act 1990 (Cth) also states that it is an infringement of copyright to reproduce, publish, or perform an original work without the owner's permission. As Joan is printing the chorus from "Shake It Off" in her book, she is violating Section 177 of the Copyright Act of 1990, which prohibits the reproduction of original musical works. It does not matter that the chorus is only a portion of the work or that Joan is reproducing only a part of the chorus in her book; the printing of the chorus violates the copyright for the lyrics to the song "Shake it Off." Therefore, the publication of the finale in Joan's book violates the copyright for the song's lyrics.
Explanation:
Question a
The Copyright Act 1990 (Cth) grants copyright protection to original literary, dramatic, instrumental, or artistic works that surpass a certain level of creativity and originality. To qualify as an original literary composition, a piece must meet two criteria: creativity and originality. "Shake it Off" is an example of an original literary work that satisfies the requirements for copyright protection. The phrase is creative in that it is used in a particular context to convey a unique message and possesses an inherent artistic quality that encapsulates the mood and meaning of the song's Chorus. As the phrase is composed of words, it fulfills the statutory definition of a literary work. The phrase is also original, and its inclusion in the composition does not diminish its uniqueness. Therefore, it is straightforward to conclude that "Shake It Off" is an original literary work that satisfies the requirements for copyright protection.
Question b
The Copyright Act 1990 (Cth) also states that it is an infringement of copyright to reproduce, publish, or perform an original work without the owner's permission. As Joan is printing the Chorus from "Shake it Off" in her book, she is violating Section 177 of the Copyright Act of 1990, which prohibits the reproduction of original musical works. It does not matter that the Chorus is only a portion of the work or that Joan is reproducing only a part of the Chorus in her book; the printing of the Chorus violates the copyright for the lyrics to the song "Shake it Off."
In addition, Joan could still be held guilty of copyright infringement even if she did not reproduce the entire song but instead paraphrased portions of the Chorus. This is because, even though it is not an exact copy of the original work "Shake It Off," it is still a close imitation of the original, which would violate the original work's copyright.
In addition, Joan could be held guilty of copyright infringement if she included the original lyrics in her book without permission from the copyright owner. Taylor Swift has granted lyric websites exclusive use of her lyrics, further restricting any other attempts to use her lyrics without her consent.
In conclusion, the reproduction of the Chorus in Joan's book would violate the copyright in the lyrics to the song "Shake it Off" because it does not have permission from the holder of the copyright to use the lyrics, and it does not appear to be an entirely altered version of the original work. Therefore, it would violate copyright if Joan included the Chorus from "Shake It Off" in her book.

Trademark infringement occurs when a business uses a name or mark that is identical or similar to a registered trademark in a way that may cause confusion among consumers. In this scenario, we need to assess whether Merrick Jones' business name "Merrick's" infringes the trademark rights of Nestle, JRJJ, or the Merrick Corporation.
1. The Merrick Corporation Ltd: Since Merrick Jones' business operates in a different industry and provides different services (computer analysis), it is less likely to directly infringe upon the registered trademark of The Merrick Corporation, which specializes in weighing machines. Trademark infringement typically occurs when there is a likelihood of confusion between the goods or services provided by the respective parties. However, it's important to consult with a legal professional to evaluate the specific circumstances and the potential for any confusion.
2. JRJJ Capital Pty Ltd (JRJJ): JRJJ holds a registered trademark for "Merricks Capital" in class 36, which includes financial services. Merrick Jones' business does provide some services related to finance and technology, specifically within the realm of computerized business information. To determine if there is a likelihood of confusion or infringement, factors such as the similarity of the marks, the nature of the services, and the target audience will need to be considered. An attorney can provide a more accurate analysis based on the specific details of the case.
3. Societe des Produits Nestle S.A. (Nestle): Nestle holds a registered trademark for "Merrick" in class 31, relating to pet foods and treats. While Merrick Jones' business is not directly related to the pet food industry, it's important to note that Nestle claims their Merrick brand is well-known in the pet food category. If Nestle can establish that their trademark has acquired a significant reputation and is well-known among consumers, they may have a broader scope of protection. In such cases, the use of a similar name in an unrelated industry may still infringe if it causes a likelihood of confusion or association with Nestle's brand. However, the specifics of the case and the jurisdiction's laws will be crucial in determining the outcome.
To fully assess the situation and determine the potential for trademark infringement, it is highly recommended to consult with an intellectual property attorney. They can provide guidance based on the relevant legislation, case law, and specific details of Merrick Jones' business and the registered trademarks in question.


Explanation:
Under the Trade Marks Act 1995 (Cth) in Australia, trademark infringement occurs when a person uses a mark that is substantially identical or deceptively similar to a registered trademark in relation to goods or services that are the same or similar to those covered by the registered trademark, and such use is likely to cause confusion among consumers. To assess whether Merrick Jones' business name "Merrick's" infringes the trademarks of Nestle, JRJJ, or the Merrick Corporation, we need to consider the specific details and apply the relevant legal principles.
1. The Merrick Corporation Ltd: The Merrick Corporation holds a registered trademark for "Merrick" in class 9, related to automatic and continuous weighing apparatus. Since Merrick Jones' business provides services in the field of forensic computer analysis and does not operate in the weighing apparatus industry, there may be a lower likelihood of confusion among consumers. The goods or services offered by both parties are different, which reduces the possibility of direct infringement. However, it's important to consult with a legal professional to assess the specific circumstances and determine if any potential confusion exists.
Case law can provide guidance in similar situations. For instance, in the case of Shell Co. of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963), the court held that confusion is unlikely when the parties' goods or services are different, even if the marks are identical or similar. However, each case is unique, and professional legal advice should be sought to analyze the specific circumstances.
2. JRJJ Capital Pty Ltd (JRJJ): JRJJ holds a registered trademark for "Merricks Capital" in class 36, which includes financial services. Merrick Jones' business involves providing computerized business information services, including advice related to accounting systems and technology for improved business performance. Although the services provided by both parties are not identical, they are related to the field of finance and may potentially overlap.
To determine if there is a likelihood of confusion or infringement, factors such as the similarity of the marks, the nature of the services, the target audience, and the actual use of the marks need to be considered. The court would assess if a reasonable consumer would be confused or deceived into thinking there is an association between the two businesses. Consulting with an intellectual property attorney is crucial in evaluating the specific circumstances and applying relevant case law and legislation.
3. Societe des Produits Nestle S.A. (Nestle): Nestle holds a registered trademark for "Merrick" in class 31, relating to pet foods and treats. While Merrick Jones' business is not directly involved in the pet food industry, Nestle claims that the Merrick brand is well-known and has a significant reputation among pet food consumers. In such cases, even if the goods or services are unrelated, the owner of a well-known trademark may have broader protection against the use of a similar name in a different industry if it causes a likelihood of confusion or association with their brand.
To establish a claim of trademark infringement, Nestle would need to demonstrate that their Merrick trademark is indeed well-known among the relevant consumer base and that Merrick Jones' use of "Merrick's" creates a likelihood of confusion or association with Nestle's brand. The court would consider factors such as the strength of the mark's reputation, the degree of similarity between the marks, and the target audience's perception.
In assessing the potential infringement, it is essential to consult with an intellectual property attorney who can evaluate the specific details of Merrick Jones' business, the registered trademarks, the relevant case law, and the current legislation. They will provide accurate advice based on the specific circumstances and jurisdiction.