The distinction between trademark infringement and unfair competition was that trademark infringement involved the imitation of distinct product identifiers, whereas in the case of unfair competition the imitated features were descriptive aspects of the product that served as an origin identifiers only because the public had come to associate them with a single source for the goods in question. McCarthy (2004) noted that during the twentieth century the element of intent gradually decreased in importance, and the concern for avoiding consumer confusion became paramount.

Likelihood of confusion • The key inquiry is whether the D’s false or misleading representation as to the origin of goods or services is likely to confuse the consuming public. The likelihood-of-confusion test inquires whether “an appreciable number of ordinarily prudent consumers” are likely to be misled or confused into believing that the junior’s product or service either originated with the senior user, or had some connection to the senior user. • The consumer is not necessarily assumed to be highly intelligent, or to exercise high degree of care in purchasing decisions, but to posses those characteristics that are typical of buyers for the particular goods or services at issue. See the case of Volkswagen v Tatum “is not that of a careful and discriminating purchaser, but that of an ordinary and casual buyer, or perhaps even an ignorant, inexperienced and gullible purchaser”. See also Stork v Sahati and Coca-Cola v Snow Crest Beverages. • Confusion must be probable, not merely possible! (See A&H Sportswear v Victoria’s Secret Stores). As noted in Estee Lauder v Gap (1997) “the test is not whether confusion is possible, nor is it whether confusion is probable among customers who are not knowledgeable. Rather, the test is whether confusion is probable among numerous customers who are ordinarily prudent”.

Factors:

1) Similarity of Marks
2) Strength of Plaintiff’s Mark – refers to its distinctiveness; In general, the stronger the plaintiff’s mark, the greater the likelihood of confusion
3) Consumer sophistication

- More sophisticated consumers are presumed to be less easily confused than consumers who are less sophisticated, because they are presumed to have greater powers of discrimination, and thus exercise a higher degree of care, in making their purchasing decisions (Virgin Enters v Nawab). The courts consider the sophistication of the typical consumer who would encounter the junior user’s product or service. The average educational level of the relevant consumers can also be an important indicator of sophistication. 4) Actual confusion – it is difficult or impossible to demonstrate 5) Bridging the Gap – this factor considers whether the senior user is likely to expand into the junior user’s market; applies to geographic markets as well as product markets. 6) The D’s good faith – whether the junior user adopted its mark “with the intention of capitalizing on plaintiff’s reputation and goodwill and any confusion between the junior user’s and the senior user’s goods or services (see Pharmaceutical Co v Gillette Co). Bad faith may also be inferred from a junior user’s continued use of a mark after being notified of the senior user’s objections (see Mobil Oil Corp. v Pegasus and Kodak v Rakow).

Passing off – it may be defined as a misrepresentation in the course of trade by one trader which damages the goodwill of another. It is a common law of tort, and its origin lie in the tort of deception. It has developed on a case-by-case basis and different factual situations have led to the expansion of the law. As Lord Oliver observed in Reckitt & Colman Products v Borden, the “Jif Lemon” case: “this is not a branch of the law in which reference to other cases is of any real assistance except analogically”.

It is generally accepted that the modern law of passing off was first defined by Lord Parker in Spalding &