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Published online by Cambridge University Press: 16 January 2009
As far back as 53 years ago, the adaptability of the common law to changing circumstances whereby new rights have been created by the courts, has been observed and accepted as a function of the judiciary. Scott L.J. in his dictum in Haseldine v. Daw stated: The common law has throughout its long history developed as an organic growth, at first slowly under hampering restrictions of legal forms of process, more quickly in Lord Mansfield's time, and in the last 100 years at an ever increasing rate of progress as new cases, arising under new conditions of society, of applied science and of public opinion, have presented themselves for solution.
1 [1941] 2 K.B. 343 at 362.
2 As in the case of Dunlop Rubber Company v. Dunlop [1921] 1 A.C. 367, where an injunction was given to prevent people from showing any pictures of the plaintiff which represented him in absurd or “unsuitable costumes”.
3 Howell, Robert, “The Common Law Appropriation of Personality Tort” (1986) Intellectual Properly Journal 150Google Scholar.
4 Ibid.
5 Per Clarke, J. in The Robert Marley Foundation v. Dino Michelle Ltd., unreported. (C.L. R115/1992), judgment 12 May 1994Google Scholar.
6 Note 5 above
7 [1979] AC. 731.
8 Note 5 above.
9 In Clerk & Lindsell on Tons (Sweet & Maxwell, 1989) pp. 29–30Google Scholar.
10 Note 7 above.
11 Note however that, as the case of British Legion v. British Legion Club (Street) Ltd. [1931] 48 R.P.C. 555 shows, long before the Advocaat case a number of decisions involving charitable, professional and service organisations were already holding that a common field of activity was not an essential ingredient of the passing off action.
12 [1991] F.S.R. 145.
13 Ibid.
14 The concept of deception becomes more important where there is no common field of activity which would normally cause confusion.
15 In The Robert Marley Foundation v. Dino Michelle Ltd., note 5 above.
16 [1960] N.S.W.R. 279.
17 Note 12 above.
18 Promotional goodwill relates not just to reputation attached to one's goods or services but extends also to the ability to recommend or promote other people's goods and services.
19 Andrew Ferry: “Image—Filching and Passing Off in Australia: Misrepresentation or Misappropriation? Hogan v. Koala Dundee Pty Ltd. [1988] A.T.P.R. 40–902”, [1990] 6 E.I.P.R.219.
20 Sue Smith (1988) A.T.P.R. 40–833Google Scholar at 48, 987 (Full Federal Court of Australia).
21 Howell, Robert, “The Common Law Appropriation of Personality Tort” [1986] Intellectual Property Journal 150Google Scholar.
22 “Appropriation of Personality–A New Tort?” (1983) 99 L.Q.R. 281Google Scholar.
23 [1973]40D.L.R. (3d) 15.
24 [1977] 80 D.L.R. (3d) 583.
25 [1977] 17O.R. (2d)370.
26 [1981] 34O.R. (2d) 126.
27 [1983] 72 C.P.R. (2d) 238.
28 [1983] 694 F(2d)674.
29 The Martin Luther King Jr. Centre for Social Change Inc. v. American Heritage Products Inc. [1983]694 F (2d) 674 at 682Google Scholar.
30 Ibid. 683.
31 [1987] 733 S.W. (2d) 89.
32 [1976] F.S.R. 252.
33 According to Halsbury's Laws of England (4th Edition) Volume 48 paragraph 168, the plaintiff is generally entitled to recover damages for all loss actually sustained by him as the natural and direct consequence of the defendant's wrongful act. Paragraph 168 states also that if the defendant's goods are inferior, the plaintiff may suffer additional damage to the reputation of his goods or services.
