H.P. Bulmer Ltd and and Another (Plaintiffs Appellant) J. Bollinger S.Q. and Champagne Lanson and Another (Defendants Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE GOFF,LORD JUSTICE WALLER |
| Judgment Date | 20 July 1977 |
| Neutral Citation | [1977] EWCA Civ J0720-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1970 H No. 9347 |
| Date | 20 July 1977 |
[1977] EWCA Civ J0720-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Chancery Division
(Mr. Justice Whitford)
Lord Justice Buckley
Lord Justice Goff
and
Lord Justice Waller
MR. DAVID HIRST Q.C., MR. WILLIAM. ALDOUS Q.C, and MR. S.J. THORLEY (instructed by Messrs. Ashurst Morris Crisp & Co., Solicitors, London) appeared on "behalf of the Plaintiffs (Appellants).
MR. C. SPARROW Q.C. and MR. R. JACOB (instructed by Messrs. Monier Williams & Keeling, Solicitors, London) appeared on "behalf of the Defendants (Respondents).
The plaintiffs in this action, H.P. Bulmer Ltd, and Showerings Ltd., are respectively the manufacturers of products which they have marketed under the trade names or descriptions "Bulmers Pomagne Champagne Cider" and "Babycham Champagne Perry". The defendants are two well known manufacturers and shippers of Champagne. They are sued on their own behalf and on behalf of all persons who produce wine in the district of France known as the Champagne District and ship such wine to England and Wales. The plaintiffs claim (1) a declaration that they are entitled to use the expressions "Champagne Cider" and "Champagne Cyder" upon and in relation to cider provided that such use is not contrary to any Government regulation that is in force at the relevant time and (2) a declaration that they are entitled to use the expression "Champagne Perry" upon and in relation to Perry provided that such use is not contrary to any Government regulation that is in force at the relevant time.
The defendants counterclaim (1) a declaration that the use by the plaintiffs of the expressions "Champagne Cider" and "Champagne Perry" in relation to beverages other than wine produced in the Champagne District of France is contrary to European Community Law; (2) an injunction restraining the plain-tiffs and each of them from using in the course of trade the word "Champagne" in connection with any beverage not being a wine produced in the Champagne District of France; (3) alternatively, an injunction restraining the plaintiffs and each of them from using in the course of trade the word "Champagne" in connection with any beverage not being a wine produced in the Champagne District of France in such a manner as to be likely to lead to the belief that such beverage is or resembles, or is a substitute for, or has the character of, or is in some way connected with, wine produced in the Champagne District of France, or is otherwiseentitled to the benefit of the goodwill attached to wine produced as aforesaid and other relief which I think I need not read.
The action was tried by Mr. Justice Whitford who dismissed the plaintiffs' action and on the counterclaim granted an injunction restraining the plaintiffs and each of them from using in the course of trade the expressions "Champagne Cider", "Champagne Cyder" and "Champagne Perry" or any of them, and from using in the course of trade the word "Champagne" in any manner calculated to lead to confusion or deception with certain ancillary relief.
The plaintiffs Showerings Ltd., whom I shall call the appellants., appeal against this injunction and claim the declaration sought below in respect of Champagne Perry. H.P. Bulmer Ltd., whom I shall call "Bulmers", de not appeal.
The learned judge in a very long and most careful reserved judgment reported in (1976) Reports of Patent Cases, 97, sets out the relevant facts in detail. I do not propose to repeat them except to the extent necessary to make this judgment intelligible.
Bulmers are well known manufacturers of cider, carrying on their business in Herefordshire, and have sold a high grade cider under the brand name "Pomagne Champagne Cider" since about 1906 down to the date of the learned judge's judgment. Since about 1950 down to the date of the judgment the appellants have manufactured and sold a high grade perry under the brand name "Babycham Champagne Perry".
Other makers of cider and perry, including Goldwell Ltd. of East Mailing, Kent, have made use of the descriptions "Champagne Cider" and "Champagne Perry" to describe their products. In 1970 the defendants in the present action, suing in the like representative capacity to that in which they are now sued in this action, instituted an action against Goldwell Ltd. for an injunction torestrain Goldwell from using in the course of trade the word "Champagne" in connection with any beverage not being a wine produced in the Champagne District of France. This stimulated Bulmers and the appellants to start the present action with the idea, no doubt, that it would be more advantageous to them to have the issues decided in an action in which they were plain-tiffs than in the Goldwell action in which the present defendants were plaintiffs and to which the present plaintiffs were not parties. Bulmers and the appellants at one stage applied to the Court with Goldwell's concurrence for the present action to be tried before the Goldwell action. This application was unsuccessful, but the Goldwell action has never come to trial because Goldwell submitted to a perpetual injunction in the terms sought by the present defendants in the Goldwell action.
The issue in this action, stated shortly, is whether the defendants are entitled to have the plaintiffs restrained from using the word "Champagne" to describe their cider and perry. They assert that they are so entitled in three ways, (1) under the head of "passing-off", (2) under the Trade Descriptions Act 1968 and (5) under European Community Law. I will deal first with the subject of passing-off.
To succeed on this part of the appeal the respondents must establish that the appellants have committed the tort of passing- off, a form of civil actionable wrong which does not depend upon any legislation but is recognised as an actionable wrong "by the general law of the land.
A man who engages in commercial activites may acquire a valuable reputation in respect of the goods in which he deals, or of the services which he performs, or of his business as an entity. The law regards such a reputation as, an incorporeal piece of property, the integrity of which the owner is entitledto protect. This does not, of course, mean that he is entitled to protection against legitimate competition in the market. If A's goods have acquired a reputation on the market connected with a particular name, mark or get-up, A cannot complain if the value of that reputation is depreciated by B coming on to the market with similar goods which acquire a reputation which owes nothing to the name, mark or get-up associated with A's goods. A can, however, complain if B in the course of his operations uses in connection with his goods the name, mark or get-up associated with A's goods or one so closely resembling it as to be likely. to lead to confusion on the market between the goods of A and those of B. By so doing B wrongfully appropriates to himself part of the reputation belonging to A and so infringes the integrity of A's property in that reputation.
This proprietary right recognised by the law is not a right in the name, mark or get-up itself: it is a right in the reputation or goodwill of which the name, mark or get-up is the badge or vehicle (Singer v. Loog 18 Chancery Division, 395, per Lord Justice James at page 4-12; 8 Appeal Cases, 15, per Lord Chancellor Selborne, at 26, 27, Lord Watson at 38, 39; Burberrys v. Cording 26 Reports of Patent Cases, 693, per Mr. Justice Parker at 701; Spalding v. Gamege 32 Reports of Patent Cases, 273, per Lord Parker at 284). Upon analysis it seems to me to be clear that in principle this must be so. If B has made use of a name, mark or get-up which has become distinctive of A's goods, B does not damage or interfere with A's right or ability to use that name, mark or get-up but he does, or may be likely to damage A in respect of his trade, that is to say, in respect of his, A's enjoyment of an exclusive right to make use on the market of the reputation of his goods. What is damaged or liable to be damaged is that reputation. It is this which A is entitled to have protected.
If B sells goods which are not A's goods in such a way as to give the impression that they are A's goods, A may be injured in respect of his trade in either or both of two ways. He may lose sales of his own goods which he might otherwise have made, and the reputation which his goods enjoy may be depreciated by the confusion of B's goods with his so that A's competitive position in the market may be weakened. Moreover the exclusivity of the association of the name, mark or get-up with A's business might, perhaps, be shown to be itself a valuable asset as a powerful means of bringing A's goods to the notice of the public, thus maintaining and promoting A's competitive position on the market. It has not, however, been suggested that modern advertising techniques have made it possible for a name to acquire an intrinsic value of its own as an advertising asset. Such a suggestion (if feasible at all in any case) would have to be supported by evidence of a kind which is wholly absent from, and would seem to me most unlikely to be available in, the present case. I accordingly proceed upon the established basis (see the cases just cited) that a claim to relief against passing-off cannot be based upon an alleged right of property in a name, nor in a mark or get-up. It is injury, or the likelihood of injury, to the reputation of A's goods or business, that is to say his...
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