The main focus of English law which deals with the unfair competition is to dissuade customers being confused. In Europe, unfair competition law takes its foundation so as to enforce the ‘sincere usage’ of the market-place. According to Beier, it is the right to stop one’s competitors from creating injury to him by unfair conduct. In European law, the main focus is not only on customer’s confusion, but also on what is ethical or fair commercial conduct. However, as we have already seen, the main focus is on the customer confusion as it has been established by the recent English court decisions.
Teenage Mutant Hero Turtles: In Mirage Studios and Counter-Feat Clothing, a passing off offense was confirmed by the court and interlocutory injection was granted against the defendants who had tempted customers to deem that their clothes charactering cartoons characters were manufactured under licence from the plaintiff. Thus, the court prevented commercial conduct which it declared as unfair but there was no involvement of contravention of any intellectual property right. Elder Flower Champagne: In Tattinger v Albev, also emphasized the customer confusion.
On behalf of the French Champagne industry, the plaintiff brought an action against the defendant, a small English manufacturer of customary fruit wines and cordials by naming one of its products as “Elderflower Champagne. ” The Court of Appeal granted the injunction. While deciding the case, the court gave much significance to whether consumers capable of being confused into considering “Elderflower Champagne “as real French Champagne. “ It is to be observed that in both Elderflower Champagne and Teenage Mutant Hero Turtles cases, concentrated at the boundaries of the tort of passing off, while gave more significance to customer confusion.
Moreover, if one looks at the new Trade Marks Act 1994, one can understand that there exists some extent of safeguard against unfair competition not involving customer confusion. According to section 9 and 10 of the Trade Mark Act of U. K, an owner of the trade mark is having the right to stop use of a trade mark if it creates confusion to public due to identical or analogues to the registered trade mark and is being used for identical goods or services.
In Union v Union Soleure, the Benelux Court of Justice held that resemblance was to be ascertained by all circumstances of the case , including unique power of the mark and visual ,auditory ,conceptual and even smell resemblance so as to decide whether connections are evoked between the two marks. However, it is to be observed that in Anti-Monopoly case, the owners of the Monopoly board game trade mark triumphantly commanded the use of the name “Anti-Monopoly” for an anti-capitalist board game, on the foundation of association and not because of confusion.