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,  EWCH 1686 (IPEC)
The claimant made and sold hair oil under the name 'Moroccanoil' and the defendant sold hair oil, 'Miracle Oil'. The claimant issued proceedings against the defendant for passing off. The Intellectual Property Enterprise Court, in dismissing the claim, held that the evidence did not lead to the conclusion that members of the public were likely to assume either that Miracle Oil and Moroccanoil were the same thing, that they came from the same manufacture or were otherwise linked in trade. Accordingly, the claimant had failed to establish passing off because the evidence had not supported any likelihood of a misrepresentation by the defendant.
What was this passing off dispute about?
The claimant (MIL) launched its premium hair oil product 'Moroccanoil' in the UK in 2009. Aldi, the discount retailer, introduced a hair oil called 'Miracle Oil' to the UK around three years later. MIL alleged that the get-up and name of Aldi's product were so similar to MIL's product that a substantial number of consumers would mistake Miracle Oil for Moroccanoil or assume there was some kind of trade connection between the two products.
Why did MIL’s claim for passing off fail?
In order to succeed in a passing off claim, a claimant must establish three elements:
As is usual in passing off cases, MIL had no problem in establishing goodwill in its Moroccanoil and therefore the case focussed on misrepresentation (from which damage would flow).
There was strong evidence that Aldi wanted to create a product strongly reminiscent of Moroccanoil. For example, among Aldi’s disclosed documents were various label designs for Miracle Oil, one of which had been annotated by an employee ‘Design? needs to match Moroccan Hair Oil Colours’. However, as the Court of Appeal determined previously in Specsavers International Healthcare v Asda Stores Ltd
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