In Woolley & another v Ultimate Products Ltd & another, the Court of Appeal has clarified certain aspects of how a judge may treat evidence presented in passing off cases. In particular:
- Evidence of misrepresentation has to be the "right way round", namely that the public must be led to believe that the goods of the defendant are the goods of the claimant. Evidence that the public believes the goods of the claimant are those of the defendant would not constitute a misrepresentation for the purposes of passing off, as opposed to trade mark infringement cases where the likelihood of confusion between two marks potentially can be considered either way round.
- A judge is entitled to reach his own conclusions as to whether there has been a misrepresentation based on the totality of the evidence available and using his own common sense and experience as a member of the public, even where there is little direct evidence of a misrepresentation.
- The misrepresentation must operate to mislead a substantial number of members of the public. Substantiality is not merely a question of counting heads and the judge has to make both a qualitative and quantitative assessment of substantiality. Clear evidence of confusion between two marks (in this case, the marks HENLEY and HENLEYS used on watches) but limited direct evidence of misrepresentation was cited by the court as exactly the sort of situation where a judge is entitled to give more weight to his own experience and other evidence, than to the evidence of the witnesses.