W5 part 2 BLAW

Intellectual Property and Passing Off

• Definition of Passing Off: It's wrongful to create a false impression that the defendant's goods or services are associated with those of the plaintiff.

• Case Study: Arc'teryx vs. Adidas Lawsuit

  • Background: Arc'teryx is a Canadian outdoor gear company; Adidas had a store named "Adidas Terrex" nearby.

  • Issue: Arc'teryx claimed Adidas was passing off its outdoor store as being associated with them, causing confusion among consumers.

  • Outcome: Arc'teryx won an injunction against Adidas, highlighting the potential for confusion due to similar branding and product lines.

Goodwill and Trademark Infringement

• Goodwill: The established reputation that a brand has developed over time, which can be harmed by confusion.

• Trademark Infringement Elements:

  • Confusion or deception regarding the symbol between two companies.

  • Resulting damages or losses from this confusion.

Other Examples of Trademark Infringement

• Supermap vs. McDonald's: A company sold hamburgers named "Supermap," leading McDonald's to sue for infringement on "Big Mac."

  • Outcome: McDonald's lost because the court ruled that there would be no confusion regarding the products.

Leading Case: Ceva and Apotex

• Background: Apotex sells generic drugs; Ceva produced a branded hypertension medication.

• Initial Ruling: Lower courts ruled there was no confusion between the actual and generic drugs.

• Supreme Court of Canada Ruling: The test for confusion should be centered on whether the consumer can discern between the drugs based on appearance.

  • Significance: Following this ruling, generic drugs were mandated to have different labeling and appearance to avoid confusion.

Elements of Occupier's Liability

• General Duty of Care: An occupier must ensure safety on their premises to any visitor.

• Three Key Duties of Care:

  • Condition of the premises: Must not be hazardous (e.g., slippery, falling apart).

  • Activities on the premises: Must not pose unnecessary danger (e.g., no extreme activities that could harm visitors).

  • Conduct of third parties: Responsible for the actions of any guests or invitees.

• Duty of Care to Trespassers: Even if someone is trespassing, occupiers owe them a duty of care to avoid causing intentional harm or recklessly disregarding safety.

Standard of Care for Trespassers

• Considerations:

  • Age of the Trespasser: Children may require additional precautions (e.g., fencing around pools).

  • Reason for Trespassing: Emergencies (e.g., broken car) may warrant different considerations.

  • Nature of the Danger: Severity and recognition of any risks present on the property.

  • Cost of Risk Removal: Consideration of how difficult or expensive it would be to mitigate risks.

  • Knowledge of Risk: If the occupier knew about a danger, they must do something to warn or protect visitors.

Nuisance Law Overview

• Definition: Nuisance involves indirect interference with property rights, through actions such as noise or smells.

• Considerations in Nuisance Cases:

  • Nature of the locality: Context matters, e.g., noise in a residential area vs. industrial setting.

  • Gravity of the Harm: Intensity and duration of the nuisance behavior.

  • Usefulness of the Activity: Balancing beneficial activities against their impact on neighboring properties.

Neighborliness Standard and Useful Activity Approach

• Neighborliness Standard: Evaluates whether an activity is reasonable based on local character and established standards.

• Useful Activity Approach: Factors in societal benefits and whether the harm caused is justifiable against the utility of the activity.

Legal Doctrine of Strict Liability

• Rylands v. Fletcher Principle: If someone brings a non-natural use of land that escapes and causes harm, they are responsible regardless of negligence.

• Case Example: Rylands build a reservoir that flooded a neighbor's mine due to latent shafts that collapsed.

  • Court Ruling: Rylands was liable for the damages caused, emphasizing accountability for hazardous uses of land.

Key Points to Remember

• Ensure definitions and elements of passing off, nuisance, trespass, and negligence are clear in notes, as these concepts are critical for exams.

• Understand the distinctions between similar concepts like assault versus battery in tort law.