A person opened a fast food business with a name similar to a brand with a registered trademark.
The Court held that to determine whether there is an infringement of a registered trademark one need show a deceptive similarity. To that end the Court will use auxiliary tests such as: sight, sound, kind, quality, clientele, marketing channels, circumstances and the common sense test. The tort of passing off is deception of the public to think that there is a connection between one brand and another and for this the existence of the brand’s reputation need also be shown.
Here, a restaurant brand name has recognition by the customers and is identified with fast food service. The new business used the same brand name with the words “street food” attached to it in order to take advantage of the reputation of the registered trademark in the field of fast food and with much of concern of misleading customers i the fast-food industry. Therefore it is trademark infringement and also passing off which entitles to both payment of damages and issuance of an injunction.