THE LAW OF TORTS
REVISION QUESTIONS BY SIMASIKU, M. (2024) UNDERSTING THE
LAW BEYOND MODULE.
PASSING OFF
1. Discuss the evolution of the tort of passing off from its classic form
to its modern form. How did the ruling in Erven Warnink BV v J
Townend & Sons (Hull) Ltd [1979] AC 731 expand the scope of this
tort?
2. In the context of the tort of passing off, explain the concept of
goodwill. How did Lord Parker describe this concept in A G
Spalding & Bros v A W Gamage Ltd (1915)?
3. Consider the case of Consorzio del Prosciutto di Parma v Marks &
Spencer plc [1991] RPC 351. Explain how the three elements of
passing off—misrepresentation, goodwill, and damage—were
applied in this case.
4. Analyze the significance of the requirement that a
misrepresentation must be made by a trader in the course of trade
for the tort of passing off. What implications does this have for
non-commercial entities or individuals making similar
misrepresentations?
5. In the context of the tort of passing off, what is meant by the term
"calculated to injure"? How does this requirement impact the
burden of proof on the claimant?
6. Discuss the various kinds of misrepresentation that can constitute
passing off. How does the nature of the misrepresentation affect
the likelihood of success in a passing-off claim?
7. Evaluate the role of consumer confusion in the tort of passing off.
How must a claimant demonstrate that the defendant's
misrepresentation is likely to deceive the claimant’s customers?
8. Critically assess the remedy of an injunction in passing-off cases.
Under what circumstances might a court decide to grant or
withhold an injunction?
9. Explain the relevance of the case Gillette Safety Razor Co and
Gillette Safety Razor Ltd v Franks (1924) 40 TLR 606 to the
concept of passing off. How does this case illustrate the protection
of the claimant’s reputation and goodwill?
10. Discuss the significance of the ruling in Cadbury-Schweppes Pty
Ltd v Pub Squash Co Pty Ltd [1981] 1 WLR 193. How does this
case illustrate the protection of advertising images and the
appearance of goods under the tort of passing off?
11. In the Zambian case of Trade Kings v Unilever, Cheesebrough
Ponds, and Lever Brothers SCZ no. 2 of 2000, analyze how the
principles of passing off were applied. What was the outcome and
its implications for future passing-off claims in Zambia?
12. How does the tort of passing off interact with other forms of
intellectual property protection, such as trademarks under the
Trade Mark Act? Discuss the differences and potential overlaps
between these legal protections.
13. Reflect on the statement "The tort of passing off is part of a much
wider canvas of legal remedies controlling unfair competitive
practices." Discuss how passing off fits within the broader
framework of competition law and other related torts.
14. What defenses might be available to a defendant accused of
passing off? Discuss the potential defense of consent and any
other relevant defenses that could be argued.
15. How has the development of the internet and digital marketing
influenced the application of the tort of passing off? Provide
examples of how domain name disputes and online
misrepresentations are addressed under this tort.
