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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Maslyukov v Diageo Distilling Ltd & Anor [2010] EWHC 443 (Ch) (17 March 2010) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2010/443.html Cite as: [2010] ETMR 37, [2010] Bus LR D135, [2010] EWHC 443 (Ch), [2010] RPC 21 |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| PAVEL MASLYUKOV |
Appellant |
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| - and - |
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| DIAGEO DISTILLING LIMITED DIAGEO SCOTLAND LIMITED |
Respondents |
____________________
Alan Bryson (instructed by Bristows) for the Respondents
Hearing date: 17 February 2010
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Crown Copyright ©
MR. JUSTICE ARNOLD :
Introduction
The facts
Diageo
Single malt Scotch whisky
Dallas Dhu
Convalmore
"In addition to the original bottlings and bottlings by independent bottlers, Diageo also on occasion issues a limited release of Convalmore whisky from its own reserves. In 2003 and 2005 Diageo released bottlings of Convalmore as part of its 'Rare Malts' range."
Pittyvaich
Banff and Coleburn
Mr Maslyukov's evidence
"… my plan for the 'Dallas Dhu' young single malt whisky was to never produce it by self but simply to select and to approach the best Scottish distiller asking to distill and to age whisky for my Company. Initially. I sincerely expected to contact the original distillery in Forres, but several Scottish independent distillers misadvised me to do this, explaining that probably this 'ghost' facility isn't capable to distill. … Thus they kindly suggested me to forget the idea to 'revive' the Diageo's 'ghosts' and advised me to look for the alternative independent distiller in Scotland. Non regarding existence of such popular statements, we trust that Forres distillery can distill for our order. Other option – is to order distilling from another selected distiller in Speyside…
The idea to use the name of a closed distillery in Scotland for the young single malt from another distillery in Scotland isn't new….."
"…I dream to own the whisky production facility, a distillery in Scotland. Unfortunately my budget is too small and now I still may not afford this for my Company. Consequently, I need to spend a lot of time in travelling and in confidential negotiations with the Scottish producers, searching for the best contract distiller for my 'private labels'….
In their whiteness [sic] statement the Opponent described the condition of the Convalmore and Pittyvaich distilleries. The one historical facility (CONVALMORE) was sold out for the maximum possible price to the Scottish whisky producer with the sadist [sic] restriction in the contract to never introduce production inside. Another facility (PITTYVAICH) was 'bulldozed (…) with the remnants destroyed by fire'… In such extraordinary abusus around, I sincerely applied for registration to let the historical brands survive. The limitation was introduced in the Form TM21 in order to restrict the exclusive use of the mark. The whisky stock from the original distillery is reducing dramatically; the price for the old malts is increasing as well. The price, the information on the label, the rarity of the old malt from the closed facility – all such solid features create the significant gap between the old malts from the destroyed distilleries (may be potentially bottled by any anyone) and the young malt Convalmore and Pittyvaich from the best Scottish producers selected by the trademarks owner."
Standard of review
"In such circumstances an appellate court should in my view show a real reluctance, but not the very highest reluctance, to interfere in the absence of a distinct and material error of principle."
A decision does not contain an error of principle merely because it could have been better expressed.
Mr Maslyukov's appeal
"A trade mark shall not be registered if or to the extent that the application is made in bad faith."
This provision implements Article 3(2)(d) of First Council Directive 89/104/EC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (now codified as Directive 2008/95/EC of 22 October 2008).
"Bad faith includes dishonesty and 'some dealings which fall short of the standards of acceptable commercial behaviour observed by reasonable and experienced men in the particular field being examined'. Certain behaviour might have become prevalent but this does not mean that it can be deemed to be acceptable. It is necessary to apply what is referred to as the 'combined test'. This requires me to decide what Mr Maslyukov knew at the time of making the application and then, in the light of that knowledge, whether his behaviour fell short of acceptable commercial behaviour. Bad faith impugns the character of an individual or collective character of a business, as such it is a serious allegation. The more serious the allegation the more cogent must be the evidence to support it. However, the matter still has to be decided upon the balance of probabilities. The issue has to be considered as at the date of application for registration. An act of bad faith cannot be cured by an action after the date of application."
"119. In this case there is no dispute that Mr Maslyukov knew that the signs he had chosen to apply for as trade marks were the names of distilleries that were no longer functioning. Mr Maslyukov knew of the traditions of the whisky industry in relation to independent bottlers and the holding and release of whiskies. That is the state of knowledge of Mr Maslyukov.
120. Mr Maslyukov has had no relationship with the distilleries in question. … . These cases are not about the ability for newcomers to enter into the Scotch whisky industry; they are about the applications as trade marks for the names of distilleries that are no longer functioning. Mr Maslyukov had the whole lexicon of the world to choose from in deciding upon trade marks. He chose the names of distilleries, distilleries which are or had been owned by Diageo or Diageo's predecessors in business. He gives no persuasive reason as to why he chose these names. He states that he applied for the Convalmore and Pittyvaich trade marks in order to let the historic brands survive. I do not think that the conservation movement had extended into fighting for the survival of 'historic brands'. I cannot see that there can be any reason for the applications than to use them as a springboard for his proposed business. As a springboard there must be a hope that the products would be identified with the distilleries and take on board the reputation that they have or had. The number of persons who know of the distilleries will certainly be greater than the number of persons who have a detailed knowledge of the distilleries. In the case of Dallas Dhu the number will be increased owing to it now being a tourist destination. It will be known not only by those who visit the defunct distillery but some of those who see the publicity for the Malt Whisky Trail.
121. Those in the trade and the educated aficionados of single malt whisky will know of the practice of independent bottlers using the names of the distilleries on the whiskies that they release. Mr Maslyukov knows of this tradition.
122. As held by the ECJ [in Lindt], the fact Mr Maslyukov knew of the use of the name of the distilleries for similar or identical products and applied for those names is not an act of bad faith per se. It will depend on the circumstances of the case. … In relation to the products of the Dallas Dhu and Pittyvaich distilleries there is no evidence of competition with Diageo, as it is no longer selling the products. In 2003 and 2005 Diageo released bottlings of Convalmore and so, especially taking into account the traditions of the trade, is still involved in the trade by reference to this sign
123. In my view Mr Maslyukov is using the trade mark applications to appropriate the reputation of the distilleries; something very useful to a new business which has no history in the trade, especially when tradition and heritage are key parts of the trade. Taking into account the knowledge of Mr Maslyukov, the reputations of the distilleries, the traditions of the trade, the absence of any link of Mr Maslyukov with the distilleries I have no doubt that reasonable and experienced men in the Scotch whisky trade would consider that filing the applications falls short of the standards of acceptable commercial behaviour. (There are experts in the trade who say as much.)
124. The limitation of the rights in the applications was after the date of application, and the question of bad faith has to be considered at the date of application. Even if I take into account the limitations I do not consider that this affects my deliberations as to the views of reasonable and experienced men in the Scotch whisky trade to the applications.
125. The applications cover alcoholic beverages at large, not just whisky. However, the issues must be judged on whether the general categories of goods encompass goods for which there can be objection as per the judgment of the CFI in Duro Sweden AB v Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) Case T- 346/07 … Mr Maslyukov had plenty of time to itemise any alcoholic beverages that were of interest to him and were not whiskies and he has not done so. It also appears from the case that Mr Maslyukov's interest in the trade marks is in relation to whiskies."
Diageo's appeal
"An order setting aside those parts of the decision of the Hearing Officer dated 7 July 2009 concerning Opposition nos. 95314, 95606 and 9507 by which he rejected the appellant's grounds of opposition based on sections 5(4)(a), 3(1)(c) and 3(3)(b) of the Trade Marks Act 1994 and a declaration that the each of the said grounds of opposition was justified."
"This is an attempt by a successful party to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal."
"Many appeals are brought on the basis of an order made by a judge prior to the formal document being drawn up, and In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 demonstrates that the correct reading of Lake v Lake is not that some formal document recording the order must exist. Lake v Lake [1955] P 336 properly understood means that if the decision when properly analysed and if it were to be recorded in a formal order would be one that the would-be appellant would not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal. That is in my view consistent with In re B. That this is so is not simply by virtue of interpretation of the words 'judgment' or 'order', but as much to do with the fact that the court only has jurisdiction to entertain 'an appeal'. A loser in relation to a 'judgment' or 'order' or 'determination' has to be appealing if the court is to have any jurisdiction at all. Thus if the decision of the court on the issue it has to try (or the judgment or order of the court in relation to the issue it has to try) is one which a party does not wish to challenge in the result, it is not open to that party to challenge a finding of fact simply because it is not one he or she does not like."
"It is in that context that it might be appropriate for the court at first instance to consider whether some declaration should be granted to provide a 'judgment' or 'order' or 'determination' which could be the subject of an appeal. If for example the findings of fact might be relevant to some other proceedings …, it might be appropriate to make a declaration so as to enable a party to challenge those findings and not find him or herself prejudiced by them. … It is to go beyond the scope of this judgment to consider precisely what circumstances might allow for the granting of a declaration where findings of fact might affect other proceedings. If an issue estoppel might arise that I suppose might provide a basis."
"It is significant that the wording of section 15 of the Social Security Act does not replicate that of section 16 of the Supreme Court Act. It concerns 'any decision' rather than 'any judgment or order'. To that extent, Lake's case is not applicable as a matter of construction. Nevertheless, the policy aspect of Lake's case as articulated by Hodson LJ has to be borne in mind. Does it apply so as to shut out an appeal by the successful party before the commissioner? In my judgment, it does not. I find force in Mr Kovats's submission that the 'decision' referred to by the commissioner in para 1 was in each case and in reality two decisions - first, that he had jurisdiction to hear the appeal and, secondly, that the appeal should be dismissed on the merits. Whilst it is difficult to imagine circumstances in which the Secretary of State, having succeeded on the merits, should be permitted to appeal in relation to some aspect of the reasoning of the commissioner on the merits, I do not think that that necessarily precludes an appeal by him on the jurisdiction point which he lost. Moreover, as Miss Lieven submits, the Secretary of State is seeking to change 'the decision' described in para 2. He is seeking to establish that the appeals of the claimants should have been rejected for want of jurisdiction rather than dismissed on the merits. It is mainly for these reasons that I do not consider that we are precluded by law from hearing these appeals. Having said that, however, I am not to be taken to be enabling a whole range of 'winners' appeals'. It is significant that, in the present case, the subject matter of the proposed appeals to this court is a ruling by the commissioner on a fundamental legal issue of jurisdiction and not a finding such as the finding of adultery in Lake's case. The latter was of interest only to the parties and, as between them, was of no lasting legal significance in view of the finding of condonation. Thus, even where ingenuity can result in the decision of a commissioner being represented as, in reality, two decisions, I would expect this court to refuse the successful party below permission to appeal against an immaterial finding of no general significance."
"A decision of fact or law against the party who succeeded or one which was not necessary to the decision will not found an estoppel because it cannot be fundamental to the decision. It would be unjust for such a decision to create an estoppel because the person who failed on that issue cannot effectively appeal against it."
Diageo's respondent's notice
"A respondent who-
…
(b) wishes to ask the appeal court to uphold the order of the lower court for reasons different from or additional to those given by the lower court,
must file a respondent's notice."
"A trade mark shall not be registered if, or to the extent that, its use in the United Kingdom is liable to be prevented-
(a) by virtue of any rule of law (in particular the law of passing off) protecting an unregistered trade mark or other sign used in the course of trade
…"
This provision implements Article 4(4)(b) of the Directive.
"The law of passing off can be summarised in one short, general proposition: no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying 'get-up' (whether it consists simply of a brand name or trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. ... Thirdly he must demonstrate that he suffers, or in a quia timet action that he is likely to suffer, damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff."
CONVALMORE
"136. In 2003 and 2005 Diageo made special releases of Convalmore whisky. It has, therefore, shown a continuing relationship with whisky sold by reference to this sign, even if the distillery is no longer producing the whisky. In his witness statement Mr Robertson states:
'Diageo also on occasion issues a limited release of Convalmore whisky from its own reserves'.
It is not clear if Mr Robertson is referring to Diageo's reserves in particular or to reserves of Convalmore whisky in general. The distillery is now in the ownership of a third party.
137. It is necessary to decide if at the material date, 13 August 2007, Diageo had a goodwill, whether residual or not, by reference to the sign CONVALMORE. In the absence of a clear indication that Diageo continues to have whisky from the distillery in store for future release I can only base my consideration on the basis that there has been no release of the whisky after 2005 and that there is no probability of whisky being distilled at the distillery again. Diageo has specifically prevented the new owner of the distillery from using the name of the distillery in relation to whisky and from distilling. In these circumstances I do not consider that it has established that at the material date it had a goodwill or a residual goodwill. Consequently, Diageo cannot succeed in relation to its claim of passing-off."
"36. Where … evidence is given in a witness statement filed on behalf of a party to registry proceedings which is not obviously incredible and the opposing party has neither given the witness advance notice that his evidence is to be challenged nor challenged his evidence in cross-examination nor adduced evidence to contradict the witness's evidence despite having had the opportunity to do so, then I consider that the rule in Brown v Dunn applies and it is not open to the opposing party to invite the tribunal to disbelieve the witness's evidence.
37. Despite this, it is not an uncommon experience to find parties in registry hearings making submissions about such unchallenged evidence which amount to cross-examination of the witness in his absence and an invitation to the hearing officer to disbelieve or discount his evidence. There have been a number of cases in which appeals have been allowed against the decisions of hearing officers who have accepted such submissions. … I consider that hearing officers should guard themselves against being beguiled by such submissions (which is not, of course, to say that they should assess evidence uncritically)."
DALLAS DHU and PITTYVAICH
"130. In this case there has been no production of the whiskies at the distilleries for many years. However, whiskies bearing the names of the distilleries continue to be sold and are likely to be continued to be sold for many years to come; this is by way of the nature of the single malt whisky trade. The bottlings continue well after the demise of the distillery. Many goods continue in circulation well after the producer has ceased business eg cars and motorcycles. However, these are second hand items which are being put back onto the market. In relation to the single malt whiskies there are new releases of the product. The very date of the release also makes a difference, as the older the product the more expensive that it is likely to be. So each release, because of the aging element of the product, puts a new product onto the market by reference to the distillery. So in terms of passing-off the single malt whisky market is very different to most other markets. However, I need to consider the specifics of the cases involved here and not the generality of the market. The products of the Convalmore, Dallas Dhu and Pittyvaich distilleries all continue to be released. These are signs that are used in trade in relation to single malt whiskies. However, with the exception of the products of the Convalmore distillery the trade is being conducted by the independent bottlers. Diageo has made two releases of whisky from the Convalmore distillery, in 2003 and 2005.
131. The issues relating to residual goodwill were dealt with by Pennycuick VC in Ad-Lib Club Ltd v Granville [1971] FSR 1. As there is no evidence of Diageo, or its predecessors in title, having made use of the names of the Dallas Dhu and Pittyvaich distilleries since the closure of these distilleries in 1983 and 1993 respectively, any goodwill must be of a residual nature. …
132. The Pittyvaich distillery has been destroyed, the Dallas Dhu distillery is a museum run by Historic Scotland, the Convalmore distillery is owned by William Grant & Son, and no longer used for distilling. I do not consider that the argument that these distilleries could start producing whisky for Diageo has any legs. The signs as used are linked to the distilleries, the distilleries no longer distil, there is no realistic possibility that they will do so again. In The Law of Passing-Off (third edition) Christopher Wadlow at 3-178 states:
'The better view is that if a business is deliberately abandoned in circumstances which are inconsistent with its ever being recommenced then the goodwill in it is destroyed unless contemporaneously assigned to a new owner. Otherwise, the goodwill in a discontinued business may continue to exist and be capable of being protected, provided the claimant intended and still intends that his former business should resume active trading. It is not necessary that the prospect should be imminent, but the mere possibility of resumption if circumstances should ever change in the claimant's favour is not enough. The claimant's intention to resume business may the more readily be believed where the original cessation was forced on him by external circumstances, but this factor is not conclusive either way.'
As far as DALLAS DHU and PITTYVAICH are concerned there has been no trade by Diageo or its predecessors in title for many years. There is no prospect of the distilleries recommencing production. It is Diageo that claims the goodwill and I do not consider that it established that it has either a current or a residual goodwill in relation to these signs and so its claim under section 5(4)(a) in relation to them must fail. …
133. The case of Diageo is that Diageo owns the goodwill and that Diageo will suffer the damage. Whether there is a case in respect of the independent bottlers, whether there is a case in relation to the Scotch whisky industry at large (cf the Champagne cases) has not been pleaded. It is also to be noted that as the oppositions in relation to PITTYVAICH and CONVALMORE were made after the coming into force of The Trade Marks (Relative Grounds) Order 2007 on 1 October 2007, only the owner of the goodwill could file an opposition under section 5(4)(a)."
"If a business ceases or suspends trading temporarily, there remains a residual goodwill which the claimant might wish to sell or use in a reopened business. If once [sic] the business is definitely abandoned, however, so that the claimant no longer owns goodwill, there can be no passing off. Where no positive decision is made to abandon goodwill, but trade under the mark has nonetheless ceased with no concrete plan for restarting operations, the question of whether any residual goodwill survives, and for how long, is a question of fact in each case."
"1877. It is clear that, as a matter of law, goodwill can be abandoned. A common case in which abandonment is held to have taken place is where a business is discontinued, with no prospect of restarting, and its assets are broken up and sold: Pink v. Sharwood (1913) 30 RPC 725. Mr Purvis submitted that goodwill cannot be abandoned unless the person alleged to have abandoned it knew that he had it and intended to abandon it. However, the requirement of an intention to abandon was rejected in Norman Kark Publications Ltd v Odhams Press Ltd [1962] RPC 163. Mr Wadlow says in his book The Law of Passing Off (3rd ed. para. 3-178):
'The better view is that if a business is deliberately abandoned in circumstances which are inconsistent with its ever being recommenced then the goodwill in it is destroyed unless contemporaneously assigned to a new owner.'
1878. I agree. In my judgment when QCL went into liquidation, without any attempt being made to sell any of its assets (still less sell the business and goodwill as a going concern), its goodwill was destroyed."
"62. The goodwill attaching to THE SUPREMES name by virtue of the performances of the various Motown recording artists who had performed together under that name between 1961 and 1977 was a valuable asset. It remained a valuable asset on the basis that sales of Motown recordings of their performances as THE SUPREMES had continued without interruption. The marketing of live and recorded performances delivered by the new group concurrently with the marketing of recorded performances delivered by the old group, all being presented as performances of THE SUPREMES, was apt to augment the pre-existing goodwill because the live and recorded performances were likely to be attributed to a single, continuing business undertaking in the perceptions and recollections of the average consumer. The pre-existing goodwill could not, in the context of the claims raised in the present proceedings, be regarded as the property of the members of the new group without evidence (which might be evidence of release, waiver or abandonment) sufficient to justify a finding that they became successors in title thereto.
63. The evidence on file is not sufficient to justify such a finding…."
"It is implicit in the decision of the Appointed Person that the Motown-owned goodwill had neither been abandoned in 1977, nor extinguished by 198[5]. This seems correct. In the present case it would be inappropriate to attempt to distinguish between goodwill arising from live performances, and that arising from recordings and broadcasts. Sales of Supremes records continued, there was a loyal fan base, and the name was recognised by the general public. It need make no difference that the then members of the Supremes resolved in 1977 to split up and go their separate ways: they were not in law the owners of the goodwill and their collective state of mind could not prejudice Motown's rights."
"86. The applicant appealed to an Appointed Person under s.76 of the 1994 Act contending in substance that:
…
(2) the hearing officer had mistakenly equated cessation of use with abandonment of goodwill and wrongly concluded that the goodwill in THE SUPREMES name had been abandoned when the old group disbanded in 1977;
(3) the hearing officer wrongly concluded that the activities of the new group between 1985 and 1995 had supplanted the whole of the goodwill attaching to THE SUPREMES name by virtue of the performances of the various Motown recording artists who had performed together under that name between 1961 and 1977;
…
Points (2) and (3):
90. I agree with the applicant on these points."
"Even if it had established a residual goodwill I cannot see what damage that it can claim as it is no longer selling the products. If inferior goods were sold under the trade marks there is nothing to establish that the purchaser would make a connection with Diageo, who have never produced the whisky at these distilleries. It would require a purchaser to follow the chain of ownership back from Diageo, an unlikely occurrence. The expert who might know of the chain of ownership would have the expertise not to link the goods to Diageo. Diageo claims that damage would also arise as the sign would no longer guarantee the quality, character, commercial or geographical origin of the product. This effectively rehearses the arguments that were made in relation to section 3(1)(c) and section 3(3)(b), and which I have rejected. In relation to DALLAS DHU and PITTYVAICH, I do not consider that Diageo would suffer any damage that falls within the parameters set out in [Sir Robert McAlpine Ltd v Alfred McAlpine plc [2002] EWHC 630 (Ch), [2004] RPC 36."
"Whether the public is aware of the plaintiff's identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff. For example, if the public is accustomed to rely upon a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name."
"When it comes to considering damage, the law is not so naïve as to confine the damage to directly provable losses of sales, or 'direct sale for sale substitution'. The law recognises that damage from wrongful association can be wider than that. Thus in Ewing v Buttercup Margarine Ltd (1917) 34 RPC 232 Warrington LJ said:
'To induce the belief that my business is a branch of another man's business may do that other man damage in all kinds of ways. The quality of the goods I sell; the kind of business I do; the credit or otherwise which I might enjoy. All those things may immensely injure the other man, who is assumed wrongly to be associated with me.'
In so saying, he was not limiting the kinds of potential damage to those listed by him. Rather, he was indicating that the subtleties of the effect of passing off extend into effects that are more subtle than merely sales lost to a passing off competitor. In Associated Newspapers Ltd v Express Newspapers [2003] FSR 909 at 929 Laddie J cited this passage, referred to other cases and went on to say:
'In all these cases [that is to say, the Clock Ltd case referred to above and Harrods v Harrodian School [1996] RPC 679], direct sale for sale substitution is unlikely or impossible. Nevertheless the damage to the Claimant can be substantial and invidious since the Defendant's activities may remove from the Claimant his ability to control and develop as he wishes the reputation in his mark. Thus, for a long time, the common law has protected a trader from the risk of false association as it has against the risk of more conventional goods for goods confusion.'
The same Judge expressed himself more picturesquely, but equally helpfully, in Irvine v Talksport Ltd [2002] 1 WLR 2355 at 2366. Having pointed out the more familiar, and easier, case of a Defendant selling inferior goods in substitution for the Claimant's and the consequential damage, he went on to say:
'But goodwill will be protected even if there is no immediate damage in the above sense. For example, it has long been recognised that a Defendant cannot avoid a finding of passing off by showing that his goods or services are of as good or better quality than the Claimant's. In such a case, although the Defendant may not damage the goodwill as such, what he does is damage the value of the goodwill to the Claimant because, instead of benefiting from exclusive rights to his property, the latter now finds that someone else is squatting on it. It is for the owner of goodwill to maintain, raise or lower the quality of his reputation or decide who, if anyone, can use it alongside him. The ability to do that is compromised if another can use the reputation or goodwill without his permission and as he likes. Thus Fortnum and Mason is no more entitled to use the name FW Woolworth than FW Woolworth is entitled to use the name Fortnum and Mason …'
'The law will vindicate the Claimant's exclusive right to the reputation or goodwill. It will not allow others so to use goodwill as to reduce, blur or diminish its exclusivity.' (at 2368)
In Taittinger SA v Allbev Ltd [1994] 4 All ER 75 at 88, Peter Gibson LJ acknowledged that:
'Erosion of the distinctiveness of the name champagne in this country is a form of damage to the goodwill of the business of the champagne houses.'
The same view was expressed by Sir Thomas Bingham MR at 93."
Conclusion