Sale of pumpkin seeded love-heart shaped cupcakes could amount to passing off. There must be a relevant misrepresentation, which might lie in imitating the appearance of the claimant’s goods. The question is whether the shape and other characteristics denote a particular source of goods: Numatic International v Qualtex. Gabriella’s cupcakes are said to resemble those of Lovecakes Ltd, which manufactures in the same town. The misrepresentation must be such as is really likely to be damaging to C’s goodwill: Phones 4U Ltd. This might be shown by the large order that Jorge makes – which might be at the direct expense of Lovecakes Ltd. It does not matter that Jorge as intermediary is not deceived; it is enough if the act is calculated to cause confusion in the minds of the purchasing public: Draper v Trist. An injunction might be available. Jorge might have an action in deceit against Gabriella’s agent Monica. As to the assertion about the ability to supply cupcakes in commercial quantities, this might have been made recklessly – not caring whether it is true or not: Derry v Peek. The statement has been made in order to induce Jorge to make a purchase and it appears to have induced the purchase (as per Downs v Chappell) and subsequent damage to Jorge’s reputation (see Parabola v Browallia). Gabriella most likely would be responsible for Monica’s deceit because Monica’s job was to sell cupcakes; in other words, this was within her authority to act: see Armagas v Mundogas. Similar considerations apply to the statements about the cupcakes being (at the moment) ‘preservative free’.
Chapter 14 Guidance on answering the questions in the book