Bath & Body Works (BBW), a leading toiletries and cosmetics company, filed a complaint in the US District Court for the Central District of California on Monday, November 19, 2018, against discount supermarket chain Aldi. The complaint stated that Aldi had copied at least 15 of their scented candles by using identical or near identical names. BBW also stated in its complaint, that some of its customers have bought these products from Aldi believing that they are BBW products being sold at a discounted rate, only to be disappointed by their “inferior quality and smell”.
Passing off protects unregistered intellectual property, where consumers are likely to be deceived, confused and misled as to the origin of the products. Furthermore, consumers may be led to believe that there is some connection or business relationship between the entities which own these products. For a passing off claim to be successful, the claimant must prove that the it has good will and a reputation in the market; it must also prove misrepresentation; and such misrepresentation must be seen to have resulted in a loss or diversion of trade or dilution of goodwill.
Although passing off is a difficult claim to prove, BBW should be successful in their claim if they can prove that they possess good will, that the public has been misled to believe that these products have originated from them and that they have suffered a loss in profits or a dilution in their reputation as a result of Aldi’s sale of “inferior” products.
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